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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. The Defendant, at the time of refusal to measure the drinking alcohol of this case, was found to have been cut back, and the Defendant was unable to comply with the breath measurement due to breath, so there was a justifiable reason for refusing to measure the drinking alcohol.
B. The sentence of the lower court (one year of imprisonment) is too unreasonable in light of all the terms and conditions of sentencing.
2. Determination on the grounds for appeal
A. In a case where there is a considerable reason to recognize that a driver has driven a motor vehicle while under the influence of alcohol in a judgment on a mistake of facts, the police officer may measure whether the driver has driven the motor vehicle, and the driver has the duty to comply with such a measurement, but the driver cannot demand a measurement of the same method until it is impossible or extremely difficult to measure the respiratory due to the reason such as the driver's body or any other reason. In such a case, the police officer cannot be deemed to have failed to comply with such a measurement even though the police officer requested a breath measuring instrument to measure the breath in spite of the driver's physical condition, and failed to put the concealment to the degree that the driver may suffer from the breath measuring instrument
(See Supreme Court Decision 2010Do2935 Decided July 15, 2010, etc.). The following circumstances acknowledged by the lower court and the evidence duly admitted and examined by the lower court (see, e.g., Supreme Court Decision 2010Do2935, Jul. 15, 2010). In other words, the Defendant asserted that the Defendant was unemployed at the time of the request for a drinking test of this case, but according to the fact-finding inquiry by E Hospital, the Defendant did not have any opinion of good faith or light training at the time, and ② the Defendant was not found to have a framework of the crym of the crym of the chest computer system (CT) at the time of the drinking measurement of this case, and the Defendant was not in a state of having difficulty in respiratory due to the result of the test of this case,