point of caution in calculating the blood alcohol concentration using the Badmark formula

Articles 41(1) (see current Article 44), 107-2 subparag. 1 (see current Article 150 subparag. 1) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005), Article 307 of the Criminal Procedure Act

Supreme Court Decision 2000Do3145 Delivered on October 24, 2000

Defendant

Prosecutor

Seoul Central District Court Decision 2005No1413 Decided August 4, 2005

The appeal is dismissed.

We examine the grounds of appeal.

1. If it is not possible to measure blood alcohol level by examining a driver’s blood or pulmonary sample immediately after driving, the degree of alcohol level at the time of driving may be presumed as a result of veterinary calculation using the so-called dicmark: Provided, That the presumption of blood alcohol density at the time of driving by the dicmark formula has the part concerning the highest blood level due to the absorption and distribution of alcohol and decomposition upon the lapse of time. Among them, the maximum blood concentration is 0 parts concerning the absorption rate of alcohol, nature, vision, age, height, body weight, age, age, age, age, etc., and age of 00 and the degree of uncertainty of drinking, etc., which can easily affect the conclusion of the judgment if it is necessary for the defendant to clearly prove that the above average quantity of alcohol level can easily change from the point of time to the point of time when the judgment is made, such as the degree of harm and alcohol level, as long as it is necessary for the application of 0 kinds of drinking alcohol, degree of influence on the driver’s average quantity of alcohol, etc.

2. The allegation in the grounds of appeal is, in light of the following: (a) the blood content measured by Hobbebbes, at the time of drunk driving, at a level of 0.065% higher than that of 0.05%; (b) the blood of the Defendant was collected after approximately 21 minutes; and (c) blood was measured at 0.050% higher than that of the blood; and (d) the blood level was measured as a result of the blood test, the Defendant’s blood level was measured at 0.050%; (b) the Defendant’s blood level was already at the highest level prior to the blood alcohol level (0:50) and the blood collection (0:11): (c) on the premise that the blood concentration at the time of drunk driving (01:11) was continuously reduced, the blood concentration at the time of blood sampling should be

3. However, in light of the fact that the factors leading to the highest blood alcohol concentration are extremely diverse and that the difference is serious depending on individual's body condition or before and after drinking, it is difficult to determine that the blood alcohol concentration had already reached the highest level before the blood alcohol level (the time of blood alcohol in the record is 23.30 minutes before and after drinking). Under such conditions, it cannot be concluded that the blood alcohol concentration at the time of driving exceeds 0.05% as in the instant case by adding the blood alcohol concentration decline to the blood alcohol concentration measured after blood examination, which is 0.05% and is 0.05% above, and it cannot be concluded that the blood concentration at the time of driving exceeded the punishment standard (see Supreme Court Decision 201Do1929, Jul. 13, 2001; 2005Do1929, Feb. 29, 2005).

4. The court below found that the blood alcohol concentration of the defendant was 0.0514% [=(0.00 + (0.08 x 1/60) + 11%] of the blood alcohol concentration of the defendant around 01:00, 00 on the basis of the facts most favorable to the defendant, i.e., the blood alcohol concentration of 90 minutes after drinking the highest level, and 0.08% after drinking the highest level, i.e., the blood alcohol concentration of 0.0% after drinking the highest level, i.e., e., 90 minutes from 01:0 to 011; ii). However, in light of the legal principles as seen earlier, the court below's determination that the blood alcohol concentration of the defendant was 0% prior to driving the freight of this case x 90% of the freight concentration of less than 9% of the defendant's blood alcohol level until his blood alcohol concentration was 50% of the blood alcohol level after drinking.

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

Justices Kim Young-ran (Presiding Justice)