Plaintiff (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

The Commissioner of Gyeonggi-do Police Agency

June 15, 2006

Suwon District Court Decision 2005Gudan4520 Decided October 14, 2005

1. Revocation of a judgment of the first instance;

2. The Defendant’s revocation of the license granted to the Plaintiff on March 9, 2005 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The following facts may be acknowledged in full view of the purport of the entire pleadings in each entry of Gap evidence 1, Eul evidence 1, Eul evidence Nos. 4 through 11, and Eul evidence Nos. 4 through 11:

A. On June 13, 1998, the Plaintiff acquired Class 1 driver’s license for large automobile.

B. At around 20:10 on January 29, 2005, the Plaintiff: (a) driven a two-lane on the roads of the 3rd line of the 1461-3 Gaoon Gao-dong 1461-3 Gao-si, Gao-si, the 1461-3rd line in front of the 1461-3 Gaoon-si, with an individual taxi, and stopped from the 520 Doo-si Station, and was stopped on the 0.11% of the blood alcohol level of the Non-Party’s (vehicle number omitted) driver’s (on the other hand, the 3rd line of the driver’s (vehicle number omitted) driving, which was stopped on the other side of the 3rd line, destroyed the said Doo-si with the 2,027,000 won of the repair cost. On the same day, the 21:50 me found the blood alcohol concentration

C. The Plaintiff thought that the above numerical value was too high compared to the alcohol alcohol, and accordingly, the police officer was dissatisfied with the result of the above alcohol alcohol measurement and demanded a police officer to measure alcohol through blood sampling. The police officer in charge, around 23:25 on the same day, was found to have the blood alcohol concentration of 0.114% as a result of a request for appraisal by collecting the Plaintiff’s blood on the same day.

D. The Defendant recognized 0.126% of the above 0.114% of the blood sampling to the 95% of the pulmonary measurement (0.012% =0.008% x 95%) as the blood alcohol concentration of the Plaintiff at the time of the above accident, and issued a disposition that revoked the above driver’s license on March 9, 2005 pursuant to Article 78(1)8-2 and Article 41(1) of the Road Traffic Act, Article 53(1) [Attachment 16] of the Enforcement Rule of the Road Traffic Act (hereinafter “instant disposition”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) After the lapse of 100 minutes from the time of the accident, the blood alcohol concentration by blood extraction was 0.111% from the time of the accident, while the blood alcohol concentration by blood extraction was 0.114% from the time of the accident, and the blood alcohol concentration by blood extraction was more accurate than the time of the accident, but the Defendant’s disposition that recognized the blood alcohol concentration by blood extraction was unlawful.

(2) The blood alcohol level higher than the Plaintiff’s alcohol level was measured due to the climatic climatic climatic climatic climatic cliff conducted three years.

(3) The Plaintiff, as a private taxi engineer, has no record of driving under the influence of alcohol for the recent years, and when the instant driver’s license is revoked, his family’s livelihood is difficult, and personal injury is not caused due to the driving under the influence of alcohol, and the driving distance is only 700 meters, etc., the instant disposition is illegal disposition by abusing discretion and abusing discretion.

B. Determination

(1) The blood alcohol concentration at the time of driving can be presumed as a result of a veterinary process using the so-called dicmark formula, unless it is possible to examine the blood or pulmonary samples of a driver immediately after driving and measure the blood alcohol concentration at the time of driving. However, in cases where a scientific and other empirical rule is used to find out the existence or absence of the requisite facts in an infringing administrative disposition such as revocation of license, the relevant administrative agency shall bear strict burden of proof with regard to individual and specific facts constituting the premise for the application of the rule of law. Meanwhile, if the dicmark formula used the dic formula to assess the blood alcohol concentration at a certain time after a certain time from the particular driving point of time, based on the blood alcohol concentration measured after the specific driving point of time, and in addition to the blood alcohol concentration at the time after the decrease due to the decomposition or extinguishment of blood alcohol at the time of driving, it is more likely that the above 200th degree of average blood alcohol concentration at the time of driving is more likely to have an impact on the average blood alcohol concentration at 20.

(2) According to Gap evidence Nos. 17 (the evidence No. 6; hereinafter the same applies) the blood alcohol concentration between 30 and 90 minutes after normal alcohol alcohol consumption has reached the highest level, and thereafter, the blood alcohol concentration has gradually decreased by approximately 0.08% and 0.03% (average 0.015%) per hour. Thus, even if the Plaintiff’s pulmonary measurement and blood collection with respect to the Plaintiff was conducted after the lapse of 100 minutes or 195 minutes from the time of the accident, it appears that each blood alcohol concentration was under the highest level. Thus, the blood alcohol concentration at the time of the pulmonary measurement was lower than the blood alcohol concentration at the time of the pulmonary measurement, barring special circumstances.

However, despite the above time, the blood alcohol level by blood collection measurement was higher than 0.003% compared to the blood alcohol level by the pulmonary measurement against the Plaintiff. Considering the fact that the measurement method by blood collection among the two measurement methods is relatively accurate, the method of using a drinking measuring instrument and the situation of equipment management, it is reasonable to deem that the Plaintiff’s actual blood alcohol level at the time of the pulmonary measurement with respect to the Plaintiff was higher than 0.11% of the measured numerical value. As long as there is no objective evidence to determine that the Plaintiff was average, as long as there is no objective evidence to determine that the Plaintiff was average, the Plaintiff’s blood alcohol level at the time of the pulmonary measurement is the most favorable to the Plaintiff, so the 0.08% reduction by the 0.08% alcohol level per hour is the most favorable to the Plaintiff, and thus, the pulmonary alcohol concentration at the time of 0.16% increase by the 0.16% weight measurement by the 014.2% alcohol density at the time of the 0.

(3) Meanwhile, in a case where a measurement was conducted after a considerable time from the time of the accident, it cannot be readily concluded that the blood alcohol concentration at the time of the respiratory measurement is the blood alcohol concentration at the time of the vehicle driving. If a driver drivess at the time when 90 minutes have passed after the act of drinking, the blood alcohol concentration at the time of the accident is gradually decreased after having reached the highest level before the accident occurred, and thus, the blood alcohol concentration at the time of the accident was higher than the respiratory measurement time. On the other hand, in a case where a driver drivess at the time of the accident between 30 minutes and 90 minutes after the act of drinking, the blood alcohol concentration at the time of the accident may be gradually decreased after reaching the highest level, and it cannot be deemed that the blood alcohol concentration at the time of the accident is the same as the decreasing rate at the time of the accident. Thus, the blood alcohol concentration at the time of the accident may be higher than the respiratory level, but may be lower than the opposite.

Comprehensively taking account of the overall purport of arguments as to evidence Nos. 6, 5, and 11, the Plaintiff’s blood alcohol concentration from 60 minutes prior to the time of accident to 19:50 on Jan. 29, 2005 (60 minutes prior to the time of accident). Likewise, there is no objective evidence to determine that the Plaintiff is average, so as to be favorable to the Plaintiff, the fact that the blood alcohol concentration after 90 minutes prior to the beginning of drinking reaches the highest value, and then reduces by 0.08% per hour, at 20:40 (30 minutes prior to the time of accident, from 23:25 hours prior to the blood collection time, from the blood collection time, to 40 minutes). The Plaintiff’s blood alcohol concentration is 0.16% prior to the date of accident x 20% prior to the latest 14.0% x 10.25% alcohol concentration prior to the date of alcohol collection x 10.5% (20.6% per day)

However, since the plaintiff's blood alcohol level increase in the above highest level until reaching the above highest level, there is no ground to conclude that the plaintiff's blood alcohol level exceeds 0.1%, which is the criteria for the revocation of the driver's license, at the time of the accident of this case, 30 minutes prior to the above highest level. If the plaintiff's blood alcohol level increases in the certain rate according to time, the plaintiff's blood alcohol level at the time of the accident becomes approximately 0.090% (=0.136 x 60/90) and it falls short of the criteria for the revocation of the driver's license (if the blood alcohol level comes to the highest level in 21:20, the blood alcohol level at the time of the accident will be a lower level).

(4) Accordingly, insofar as there is no evidence to acknowledge that the Plaintiff’s blood alcohol level at the time of the instant accident fell above 0.1% (the Plaintiff was notified of a summary order of KRW 1,00,000 in the Government District Court (Case No. 14, Apr. 14, 2005) on the violation of the Road Traffic Act (Crime No. 1,000). Thus, the above summary order became final and conclusive May 25, 2005 on the ground that the Plaintiff was driving a motor vehicle at around 21:50 on Jan. 29, 2005 at around 0.126% of the blood alcohol level (HEN). It is evident that the time of the instant crime is an error at around 20:10. However, in the instant summary order, it is not unlawful to deem that the Defendant’s specific gravity of blood alcohol level exceeds the blood alcohol level of KRW 1,00,000 in the instant case without any specific conviction.

3. Conclusion

Thus, the plaintiff's claim of this case seeking the cancellation of the disposition of this case is accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, and it is so decided as per Disposition by cancelling the disposition of this case and cancelling it.

Judges Kim Yong-sung (Presiding Judge) Jin-sung (Presiding Judge)