Defendant

Defendant

Kim Tae-hun

Attorney Kim Won-ho

Cheongju District Court Decision 2009Ma2808 Decided January 29, 2010

The judgment of the court below is reversed.

The defendant is innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Since the Defendant’s passage along a family-ro 4 apartment complex (hereinafter “the apartment complex of this case”) which is a place of driving under the influence of alcohol does not fall under the roads under the Road Traffic Act. Thus, even if the Defendant refused to comply with the police officer’s request for alcohol alcohol measurement, the Defendant does not constitute a crime of violating the Road Traffic Act (refluence of alcohol measurement). Nevertheless, the lower court’s judgment convicting the Defendant of the facts charged of this case by misapprehending the legal doctrine

B. Unreasonable sentencing

The punishment of the court below (4 months of imprisonment) is too unreasonable.

2. Summary of the facts charged and the judgment of the court below

The summary of the facts charged of this case is that the defendant was requested to comply with a drinking test by inserting the drinking measuring instrument for about 30 minutes of the drinking, but the defendant did not comply with a police officer's request for a drinking test without good cause, on September 30, 2009, because there are reasonable grounds to recognize that the defendant was driving under the influence of alcohol, such as drinking, drinking, smelting, sing, and singinginging on the singular part, etc., within the Gangseo-gu Seoul Metropolitan Government Police Station Down-gu, Seodong-gu, Seodong-gu, Seodong-gu. The court below found the defendant guilty of the above facts charged in consideration of the evidence in its judgment.

3. Judgment of the court below

In order for a person subject to punishment under Article 150 of the former Road Traffic Act (amended by Act No. 9580 of Apr. 1, 2009) to be a person who has considerable reason to be deemed to be under the influence of alcohol and has failed to comply with a police officer's measurement under Article 44 (2) of the same Act, the driver must be deemed to have violated Article 44 (1) of the same Act. Thus, even if a driver driving a motor vehicle, etc. in a state of driving it, if the place of driving the motor vehicle is not a road under subparagraph 1 of Article 2 of the same Act, it cannot be deemed that the driver violated the provision on the prohibition of driving under Article 44 (1) of the same Act, and it cannot be deemed that the driver has violated the provision on the prohibition of driving under the influence of alcohol under subparagraph 2 of the same Article (see, e.g., Supreme Court Decision 9Do2127, Dec. 10, 199).

According to the evidence duly adopted and examined by the court below and the witness's statement at the court below, the defendant was unable to use the above 70 gallon road in or near the apartment complex. On September 29, 2009, the defendant parked the 40 gallon road in front of the 401 gallon road in the apartment complex, and driving the above vehicle at around 23:5 meters after driving it on the underground parking lot in the apartment complex in or near the apartment complex. On the other hand, the office of the management of the apartment complex in or near the 403 gallon road in or near the apartment complex can not be seen as a safe and safe passage between the 403 galunit and the 406 galle road in or near the apartment complex. The apartment parking lot in or near the gallon road in the above gallon road in order to ensure the safe and safe way to use the apartment lot in or near the entrance of the apartment complex.

Therefore, there is no room to see that the defendant violated the provision on prohibition of driving under the Article 44 (1) of the former Road Traffic Act (amended by Act No. 9580 of Apr. 1, 2009). Thus, even if the police officer's refusal to comply with the demand for measurement of alcohol, it cannot be deemed that the defendant did not comply with the requirement for measurement of alcohol under Article 44 (2) of the same Act. Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged in this case is erroneous in the misapprehension of the rules of evidence or

4. Conclusion

Thus, the defendant's appeal is reasonable, and it is reversed under Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after the pleading.

The summary of the facts charged of this case is as stated in the above Paragraph 2, and this constitutes a case where there is no proof of crime as stated in the above Paragraph 3, and thus, a judgment of innocence is rendered under the latter part of Article 325

Judges Kim Jin-jin (Presiding Judge)