The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. In response to a police officer’s demand for alcohol measurement, the Defendant, as well as the misunderstanding of facts, included a concealment in a drinking measuring instrument on several occasions, but did not have a drinking measuring instrument due to machinery malfunction, etc.

Although the Defendant demanded a police officer to take a blood sampling test, the police officer did not illegally receive such test.

As such, although the defendant did not intend to refuse to measure drinking, the judgment of the court below convicting the defendant of the facts charged of this case is erroneous in the misapprehension of facts and legal principles.

B. The sentence sentenced by the lower court to the Defendant (the penalty amounting to five million won) is too unreasonable.

2. Determination

A. 1) Whether a mistake of facts and misapprehension of the legal doctrine is erroneous or not, the phrase “cases of failing to comply with a police officer’s measurement” as referred to in Article 148-2(1)2 of the Road Traffic Act means under the influence of alcohol in light of the overall progress of the case.

a driver who has a reasonable reason to be appointed is objectively and objectively deemed to have no intention to respond to the measurement of drinking.

At this time, the measurement conducted to identify whether a driver is under the influence of alcohol should be understood as a measurement conducted by a respiratory measuring instrument which objectively converts the degree of the main body from the pulmonary test, i.e., a driver's voluntary cooperation.

따라서 운전자가 음주 측정을 요구 받고 호흡 측정기에 숨을 내쉬는 시늉만 하는 등 형식적으로 음주 측정에 응하였을 뿐, 경찰공무원의 거듭 된 요구에도 불구하고 호흡 측정기에 음주 측정 수치가 나타날 정도로 숨을 제대로 불어넣지 아니하는 등 음주 측정을 소극적으로 거부한 경우라면, 소극적 거부행위가 일정 시간 계속적으로 반복되어 운전자의 측정 불응 의사가 객관적으로 명백하다 고 인정되는 때에...