[1] The point of attention in calculating the blood alcohol concentration using the reverse acid method in accordance with the Ba mark formula

[2] The case holding that it cannot be readily concluded that the Defendant’s blood alcohol concentration at the time of driving exceeded the punishment standard when considering various circumstances such as the possibility of error occurring in the course of specifying the time of occurrence of the case, etc., although the blood alcohol concentration at the time of detection of drunk driving calculated in accordance with the Bamark formula, which was calculated by applying the most favorable decrease to the Defendant, was 0.051% above 0.05%, which is the punishment standard under the Road Traffic Act

[1] If it is not possible to examine blood or pulmonary samples of a driver immediately after driving and measure the blood alcohol concentration at the time of driving, the blood alcohol concentration at the time of driving can be presumed as a result of veterinary calculation using the so-called dicmark. However, if an official empirical rule, such as science, is used to find out whether the constituent elements of the crime exist, individual and specific facts constituting the premise for the application of the rule of law should be proved. Meanwhile, if the dicmark formula used the dicmark formula, it is based on the blood alcohol concentration measured after a certain time from a specific driving point of time, and such concentration is presumed to have been considerably higher than the average blood concentration at the time of driving, it is not necessary to reasonably determine whether the defendant is guilty of the above facts beyond the average blood concentration at the time of driving, and if it is not necessary to reasonably determine whether the above facts are likely to have an influence on the average blood alcohol concentration at the time of driving by using the dicmark formula.

[2] The case holding that even though the blood alcohol concentration calculated by applying the most favorable decrease rate to the defendant was 0.051% above 0.05% which is the punishment standard under the Road Traffic Act, considering various circumstances such as the possibility of error occurring in the course of specifying the time of occurrence of the case, it cannot be readily concluded that the blood alcohol concentration at the time of the defendant's driving exceeded the punishment standard.

[1] Articles 41 and 107-2 of the Road Traffic Act, Article 307 of the Criminal Procedure Act / [2] Articles 41 and 107-2 of the Road Traffic Act, Article 307 of the Criminal Procedure Act

[1] Supreme Court Decision 200Do3307 Decided October 24, 200 (Gong200Ha, 2473) Supreme Court Decision 99Do5541 Decided November 10, 200 (Gong2001Sang, 75) Supreme Court Decision 2001Do1929 Decided July 13, 2001 (Gong2001Ha, 1904), Supreme Court Decision 2002Do6762 Decided April 25, 2003 (Gong2003Sang, 1383), Supreme Court Decision 2004Do408 Decided September 24, 2005, Supreme Court Decision 2005Do32988 Decided July 14, 2005

Defendant

Defendant

Chuncheon District Court Decision 2004No696 delivered on May 20, 2005

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

According to the reasoning of the judgment below, the court below found the defendant guilty on December 15, 200 : 05 x 20% of blood alcohol at the time of 00 x 3% of the total blood alcohol at the time of 00 x 4% of the total blood alcohol at the time of 00 x 0% of the total blood alcohol at the time of 00 x 15% of the total blood alcohol at the time of 00 x 0% of the total blood alcohol at the time of 00 x 37% of the total blood alcohol at the time of 0% of the charges after the measurement of blood alcohol at the time of 00 x 0% of the total blood alcohol at the time of 00 x 0% of the total blood alcohol at the time of 0.0% of the charges after the measurement of the blood alcohol at the time of 00 - the average blood alcohol at the time of 0.0% of the previous measurement.

If a driver's blood or pulmonary sample is examined immediately after driving, and the blood alcohol concentration can be measured, it can be presumed as a result of a veterinary calculation by using so-called dicmark formula. However, if an official empirical rule, such as science, is used to identify the existence of a constituent fact, it is required to provide strict proof of individual and specific facts constituting the premise for the application of the rule of law. Meanwhile, if it is based on the blood alcohol concentration measured after a certain period of time from a specific driving point of time, and such concentration is calculated based on the 0th degree of alcohol concentration, which is calculated according to the 0th degree of 4th alcohol concentration after driving, and if it is presumed that the above 10th degree of alcohol concentration is considerably higher than 10th degree of 0th 7th 0th 1st 1st 1st 2nd 1st 2nd 1st 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 2nd 3rd 3rd 2nd 3rd 2nd 2nd 2nd 2nd 3).

When at least 0.08% of the blood alcohol concentration per time confirmed generally by the court below is 0.08% as recognized by the court below, this subparagraph shall be the most favorable to the defendant, and the court below's decision is as follows: by applying the most favorable decrease rate to the defendant, even when calculating the alcohol concentration in blood around 15:05, which is the time when the defendant was discovered to drive alcohol, according to the Badmark formula, the blood alcohol concentration will be 0.051%, and it will result in more than 0.05%, which is the punishment standard under the Road Traffic Act.

However, the degree of excess is less than 0.01%, and when considering the 0.008% reduction per hour of blood alcohol concentration, it is merely a decrease of about 7.00 seconds. Considering the fact that it is difficult for an investigative agency to specify the time of occurrence of the case in the case to attain more accuracy than 7.0 seconds, it is cut down on the 10-minute unit in the light of the fact that it is difficult to attain more accuracy (in this case, the situation is the same as the situation is stated in the report on detection of drinking drivers, but the time of measuring the blood alcohol level is stated in one minute), as seen above, the probability of error that occurs in the course of specifying the time of occurrence of the case and the fact that the individual’s characteristics and other various factors may affect the reduction of alcohol alcohol per hour, and thus, it cannot be concluded that the Defendant’s blood concentration level at the time of driving exceeded the standards for punishing the blood alcohol level.

Nevertheless, the lower court determined that the blood alcohol level at the time of the Defendant’s driving constituted 0.05% higher than that of the Defendant’s blood level by failing to exhaust all necessary deliberations, or by misapprehending the legal doctrine on the state of drunk under Article 41 of the Road Traffic Act, thereby adversely affecting the conclusion of the judgment.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)