The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The grounds of appeal are examined.

1. Based on its stated reasoning, the lower court reversed the first instance judgment convicting the Defendant of the instant facts charged and sentenced the Defendant not guilty, on the grounds that it is difficult to view that it was beyond 0.05% and above 0.09% of the blood alcohol level at the time of the termination of driving.

2. However, the lower court’s determination is difficult to accept for the following reasons.

In a situation where it is impossible to determine whether the blood alcohol concentration at the time of drinking driving is the rise or lower time, even if the blood alcohol concentration measured at the time when driving was completed at a considerable time from the time when it was completed, it cannot be readily concluded that the blood alcohol concentration at the time of actual driving exceeded the penalty standard.

Although there are differences for each individual, it is generally known that the blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest level, and then 0.08 to 0.03% per hour (average 0.015%) has decreased by 0.08 to 0.03% (average 0.015%). If the driving is completed during the rise of the blood alcohol concentration, the blood alcohol concentration at the time of driving is lower than the blood alcohol concentration actually measured.

However, even if there is an interval between the time and the time of the measurement of the blood alcohol concentration and the time of the measurement, it cannot be deemed impossible to prove that the blood alcohol concentration at the time of actual operation exceeds the punishment standard due to such circumstance.

In such cases, whether or not it can be seen that the level of punishment was above the level of punishment even at the time of driving shall be the distance between driving and measurement, the difference between the measured level of blood alcohol concentration and the standard value of punishment, the continuous time of drinking and the amount of drinking, control and measurement.