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The prosecutor's appeal is dismissed.
Reasons
1. The gist of the grounds for appeal was that the Defendant arbitrarily boarded the patrol vehicle at the police station upon the request of the police officers dispatched to the scene of the accident, and refused to take a drinking test after moving the patrol vehicle to the police station.
The court below held that since the police officer moved the defendant to the police station by carrying the patrol vehicle in the manner that the defendant was absent from the police officer in the situation that the defendant refused voluntary movement, the request of the police officer for the measurement of drinking by the defendant was unlawful. The judgment of the court below is erroneous
2. On February 7, 2014, at around 01:17, the Defendant: (a) was driving a vehicle at the entrance to move from the D hotel parking lot located in the Seo-gu in Gwangju-gu, Gwangju-gu, and was reported as a sufficient fact with a parking lot pole and a traffic inspector of the Seo-gu Police Station; (b) the Defendant was sent to the police station and the Seo-gu Police Station.
The Defendant was required at the above police station to respond to a drinking test by inserting the whole in a drinking measuring instrument from 02:29 on the same day to 02:56 on the grounds that there are reasonable grounds to recognize that the Defendant was making a drinking, such as smelling, smelling, reding, etc. on the face of the Defendant from E in the process of the traffic survey of the Western Police Station.
Nevertheless, the defendant did not take part in the measuring instrument and did not comply with the police officer's request for a drinking test without any justifiable reason.
3. It is reasonable to view that the legality of accompanying should be recognized only where it is clearly proven by objective circumstances that an investigator of the relevant legal doctrine knew that a suspect, prior to accompanying, was likely to refuse accompanying the suspect, or the suspect, who was aware that he/she could freely leave the accompanying place or could leave the accompanying place, etc., was accompanied by the suspect’s voluntary will.
(see, e.g., Supreme Court Decision 2009Do6717, Jun. 30, 201).