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

[2] In a case where, on the basis of the result of measurement conducted by a drinking gauge after a traffic accident, the blood alcohol concentration measured by the Medmark formula exceeds the punishment standard level of 0.0518%, the case holding that it cannot be concluded that the blood alcohol concentration at the time of driving exceeded the punishment standard of punishment on the ground that the time of the occurrence of the traffic accident is 65 minutes prior to the time of the occurrence of the traffic accident, since the blood alcohol concentration at the time of the traffic accident reaches the maximum level of 65 minutes

[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 Oct. 24, 200 (Gong2000Ha, 2473) Supreme Court Decision 99Do5541 decided Nov. 10, 200 (Gong2001Sang, 75), Supreme Court Decision 2001Do1929 decided Jul. 13, 2001 (Gong2001Ha, 1904), Supreme Court Decision 2002Do6762 decided Apr. 25, 2003 (Gong2003Sang, 1383), Supreme Court Decision 2004Do408 decided Sep. 24, 2004

Defendant

Prosecutor

Daejeon District Court Decision 2005No150 Decided April 28, 2005

The appeal is dismissed.

If a driver's blood or pulmonary sample is examined immediately after driving, and the blood alcohol concentration can be measured, it can be predicted as a result of calculating the blood level at the time of driving by using the so-called dmark formula. However, if an empirical rule such as scientific public awareness is used to identify the existence of elements for crime, it is required to provide strict proof of individual and specific facts which are the premise for the application of such rule. Meanwhile, if it is based on the blood concentration of 00 days after a certain time from a specific driving point of time and it is so determined by 00, 100, 200, 40,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,00,000,00,00).

In light of the records, the Defendant terminated drinking on April 6, 2004 and caused the instant traffic accident at around 20:20 on the same day after 25 minutes after driving the instant vehicle on the same day. On the same day after the lapse of one hour and 41 minutes from that date, the Defendant measured the alcohol level by 0.047% at around 22:01, and measured the blood alcohol level at around 0.047%; the blood alcohol level at around 30 minutes to 90 minutes after drinking; and the blood alcohol level at around 0.08% (average 0.015%) at around 0.03% (average 0.15%) at the time.

On the other hand, there is no objective material to determine that the defendant is average person, that is, on the basis of facts favorable to the defendant, that is, the blood alcohol concentration after 90 minutes after drinking reaches the highest level, and 0.08% per hour after reaching the highest level, the blood alcohol concentration in the instant case reaches the highest level at around 21:25, when calculating the Defendant’s blood alcohol concentration at around 0.0518 [=0518% + (0.07 + 3608 + 360%) and 36, when calculating the Defendant’s blood alcohol concentration at around 21:25, the maximum level of drinking water at 0:0 and up to 22:01.5%, which is the punishment standard for the Road Traffic Act, the maximum degree of alcohol content at the time of the instant case is above 0.0%, but it cannot be said that the Defendant’s blood alcohol concentration at the time of calculating the maximum degree of alcohol content at 0.0% after drinking.

Although the reasoning of the judgment of the court below is somewhat inappropriate, it is proper to maintain the judgment of the court of first instance which acquitted the defendant on the violation of the Road Traffic Act, since there is no evidence to acknowledge that the defendant's blood alcohol level at the time of the traffic accident in this case is not less than 0.05%, which is the standard for punishment, and it shall not be deemed that there is an error of law such as misconception of facts against the rules of evidence or misunderstanding of legal principles as to drinking driving under the Road Traffic

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)