207Guhap2460 Revocation of revocation of driver's license

A

commissioner of Jeollabuk-do Local Police Agency

May 15, 2008

July 17, 2008

1. The Defendant’s revocation of the license granted to the Plaintiff on January 10, 2007 shall be revoked. 2. The litigation cost is borne by the Defendant.

The same shall apply to the order of the Gu office.

1. Details of the disposition;

A. On September 1, 200, the Plaintiff acquired a Class 2 ordinary driver’s license.

B. At around 20:05 on December 26, 2006, the Defendant issued the instant disposition that revoked the Plaintiff’s driver’s license on January 10, 2007 as of January 16, 2007, on the ground that the Plaintiff, while under the influence of alcohol at least 0.06% of the blood alcohol concentration on the front apartment, was driven by a el branch of the el branch of the el branch of Songcheon-gu, Songcheon-gu, Songcheon-gu, Seoul. (hereinafter referred to as “Seoul-gu”), he was driving under the influence of alcohol at least three times on May 24, 2002 (0.059% of blood alcohol concentration) and driving under the influence of alcohol on three or more occasions on January 21, 206 (0.096% of blood alcohol concentration).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, Eul evidence 2, Eul evidence 3-1 to 6, Eul evidence 6-4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On December 26, 2006, at around 21:43, the Plaintiff’s blood alcohol content was measured at 0.047%, but the Defendant, on the ground that the degree of two hours after drinking was 2 hours, determined 0.06%, which is an presumed value based on the above measurement result, as the Plaintiff’s blood alcohol content at around 20:05 on the same day at the time when the Plaintiff was driving, as the Plaintiff’s blood alcohol content. The instant disposition was unlawful, even though the presumption of blood alcohol content based on the above-mark formula was likely to be an error due to various factors.

In addition, the disposition of this case is an abuse of discretion or a deviation from its limit, considering the following: (a) at the time of December 26, 2006, the Plaintiff was forced to drive the taxi to injure the Plaintiff and drive the taxi, and (b) when the Plaintiff’s driver’s license is revoked, it is difficult for the Plaintiff and their family members to maintain their livelihood.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

(1) On December 26, 2006, at around 19:30 on December 26, 2006, the Plaintiff, who was his front wife B and had a meal at the Agricultural and Fishery Product Association Center located in Songcheon-dong, Jeoncheon-si, and B, in order to avoid fighting with the Plaintiff, he was on board the said restaurant B and the cab.

(2) The Plaintiff: (a) demanded B to set off B in front of the coal taxi and start B, a taxi engineer, without disregarding the Plaintiff’s demand; and (b) at the same time, C was trying to start a taxi without disregarding the Plaintiff’s demand; (c) at the same time, C was on the wind that the Plaintiff goes beyond the Plaintiff’s territory.

By doing so, the Plaintiff was on the taxi. However, at around 20:05 on December 26, 2006, the Plaintiff appeared to have a hack pipe in his own vehicle and to assault C, and C was on board a taxi on the 20:05 on December 26, 2006, and the Plaintiff reported to the police that he was suffering from traffic accident, and began to drive the said taxi after driving his vehicle.

(3) On December 26, 2006, the Plaintiff returned to the above site and received a report from the police officer, and received a provisional investigation as well as the police officer, and C was also subject to the investigation as a voluntary withdrawal from the said district at around 21:00 on the same day. However, in the course of the accident investigation as seen above, it was revealed that the Plaintiff driven alcohol in the above site, thereby measuring the alcohol level of the Plaintiff’s blood alcohol level at the time of the measurement of alcohol level was 0.047%.

(4) Based on the result of the above alcohol measurement, the Defendant calculated the Plaintiff’s blood alcohol content reduced at the time of driving from 20:05 to 21:43), and estimated the Plaintiff’s blood alcohol content at the time of driving as 0.06% by calculating the blood alcohol content reduced at the time of blood alcohol measurement (98 minutes). Meanwhile, blood alcohol content differs depending on each individual’s physical constitution, food or alcohol type, but generally, the blood alcohol content reduced by 0.03% to 0.08% per hour on average after having reached the highest value between 30-90 minutes after drinking. Based on the premise that the Plaintiff’s blood alcohol content reduced from the Plaintiff’s driving to the time of alcohol measurement, the Defendant applied the Plaintiff’s blood alcohol content at the time of driving by applying the Plaintiff’s blood alcohol content reduced by 0.06% (0.47% + 008% per 08% per annum x 9.6% per hour per 90% per annum).

(5) On January 10, 2007, the Defendant rendered the instant disposition based on the Plaintiff’s blood alcohol concentration of 0.06% presumed as above.

[Ground of recognition] Facts without dispute, Eul evidence 4-1, 2, 3, Eul evidence 5-1, 2-2, and the purport of the whole pleadings

D. Determination

(1) In a case where it is impossible to determine whether the blood alcohol concentration at the time of drinking driving belongs to the situation where the blood alcohol concentration at the time of drinking or belongs to the situation where it comes to the highest level after reaching the highest level, and it is possible to determine whether it falls under the situation where it comes to the situation where it comes to the highest level, and rather, it cannot be confirmed that the blood alcohol concentration at the time of drinking driving cannot be confirmed by applying only the part concerning the decomposition extinguishment due to the lapse of time from the time when the blood alcohol concentration was measured, based on the blood alcohol concentration measured after a considerable time from the time when the drinking driving was conducted (Supreme Court Decision 2006Du15035 Decided January 11, 207). Thus, in such a case, the blood alcohol concentration produced by the reverse calculated by the reverse calculation method where only the said drone mark formula is applied, cannot be the basis for administrative disposition, such as the revocation of driver's license, etc. against the relevant driver (Supreme Court Decision 2006Du1

(2) According to the above facts, it is reasonable to view the Plaintiff’s final alcohol time to be around 19:30 on December 26, 2006. However, the Plaintiff’s blood alcohol concentration would lead to the highest value after the lapse of 30 to 90 minutes after drinking. Among them, if it is calculated based on the premise that the Plaintiff is most favorable to the Plaintiff, i.e., the point at which the blood alcohol concentration reaches the highest value, the point at which the Plaintiff’s blood alcohol concentration reaches the highest value is 21:0 on the same day after the lapse of 90 minutes from the Plaintiff’s final alcohol level. The Plaintiff’s blood alcohol concentration reaches the highest value. The Plaintiff’s blood alcohol concentration is 55 minutes before the Plaintiff’s final alcohol level (35 minutes after the date of final alcohol consumption) and there is no other evidence that the Plaintiff’s blood alcohol concentration at the point at which the Plaintiff’s blood alcohol concentration was measured after 60% during the operation of this case. Thus, it cannot be viewed that the Plaintiff’s blood alcohol concentration at the point at which was measured after 90%.

Therefore, the defendant's disposition of this case is unlawful without examining the remaining arguments of the plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge, judge and deputy judge;

Attorney Park Jong-soo

Judges Park Jae-young