The judgment of the court below is reversed.

A defendant shall be punished by a fine of five million won (O million won).

The above fine shall not be paid by the defendant.

1. Summary of grounds for appeal;

A. In a misunderstanding of facts, the defendant parked a vehicle on the back side of his residence, and made a 112 report to the police officer, and sent the vehicle to the site. ① At the time when the police officer called to request the defendant to comply with a measurement by drinking alcohol reduction, there was no reasonable ground to believe that the defendant was driving under the influence of alcohol, ② the police officer failed to comply with the duty to notify the defendant of disadvantage due to the refusal of drinking alcohol measurement, ③ the defendant did not have an intention to refuse the request for alcohol measurement by the police officer, ③ the police officer cannot be deemed to have no intention to refuse the request for alcohol measurement by the police officer, and ④ the police officer's arrest of the defendant as a flagrant offender of the violation of the Road Traffic Act is illegal. Therefore, the defendant cannot be said to have committed the crime of violating the Road Traffic Act.

Nevertheless, the judgment of the court below which found guilty of the facts charged of this case is erroneous in misconception of facts that affected the judgment.

B. The lower court’s sentence of unreasonable sentencing (one month of imprisonment, two years of suspended sentence, etc.) is too unreasonable.

2. Determination

A. The measurement conducted in order to identify whether a police officer under Article 44(2) of the Road Traffic Act is under the influence of alcohol pursuant to the determination of the assertion of mistake of facts shall be understood as a measurement conducted by a drinking measuring instrument, i.e., the method of collecting the respiratory and objectively converting the degree of alcohol from such a measuring instrument.

However, a police officer has discretion to a certain extent with regard to the method of measurement and frequency of measurement to the extent necessary to measure the degree of drinking or the degree of drinking. Thus, in addition to a police officer's demanding a driver to present a drinking measuring instrument in front to check whether a driver's drinking or the degree of drinking, the police officer's prior procedure is a method of inspection closely related to the measurement by a drinking measuring instrument.