The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

The above fine shall not be paid by the defendant.

Summary of Grounds for Appeal

Recognizing the fact that the defendant was a drunk driving, although the defendant was found to have not implemented his/her her marse mar, etc. to remove the remaining alcohol in the mouth at the time of the breath measurement against the defendant, it is difficult to conclude that the blood alcohol concentration of the defendant was 0.150% or more at the time of his/her drunk driving.

The sentence of the lower court on unreasonable sentencing is too unreasonable.

The measurement of the blood alcohol concentration by the respiratory measuring apparatus of the relevant legal principles as to the assertion of mistake of facts is measured when the blood alcohol concentration by absorbing in the head of the breath in the blood, thereby emitting it into the respiratory air. As such, it cannot be concluded that the blood alcohol concentration by the respiratory measuring apparatus cannot be readily concluded that the blood alcohol concentration by the breath in the blood is the same as the blood alcohol concentration by means of the breath in the process of final drinking, or by means of the use of ttototototos, stotototos, dental steel, oral pantostotos, etc., remaining in the mouth, with alcohol ingredients, when the blood on the upper part of the breath in the breath is measured together with the breath air discharged from the waste. Thus, it cannot be ruled out that the blood alcohol concentration by the breath in the breath measuring apparatus alone cannot be determined to have been higher than the blood alcohol concentration by the breath in the process.

(see Supreme Court Decision 2005Do7034, Nov. 23, 2006). However, even if the distance between the running point of drinking alcohol and the measuring point of blood alcohol level exists, and the time appears to increase the blood alcohol level, it cannot be deemed impossible to prove that the blood alcohol level at the time of actual driving exceeds the punishment standard due to such circumstance.

In such cases, whether it can be seen as above the standard value of punishment at the time of driving is between driving and measurement.