The defendant is innocent. The summary of this judgment shall be notified publicly.

1. 공소사실의 요지 피고인은 2016. 4. 4. 22:10경 울산 남구 옥동에 있는 껄떡쇠주점 앞 도로에서 같은 동에 있는 도성아파트 앞 도로까지 약 50m 구간에서 혈중알코올농도 0.103%의 술에 취한 상태로 D 쏘나타 승용차를 운전하였다.

2. Determination

A. Article 199(1) of the Criminal Procedure Act specifies the principle of voluntary investigation.

The act of accompanying a suspect to an investigative agency, etc. in the form of obtaining consent from an investigative agency, etc. is not a way to restrain the physical freedom of a suspect even though it is substantially similar to the arrest, and thus it is not institutionally arbitravable as well as practical arbitracy, and there is a high possibility that it may result in a violation of the principle of the Criminal Procedure Act, such as not providing various rights guarantee devices that are granted to a suspect arrested and detained by the Constitution and the Criminal Procedure Act, on

Therefore, it is reasonable to view that the legality of accompanying should be recognized only in cases where it is proved by objective circumstances that the investigator was accompanied by the suspect's voluntary will, such as where the investigator knew that he/she could refuse accompanying the suspect prior to accompanying, or the suspect who was accompanied could freely leave the accompanying place or at any time, etc., and that the suspect was accompanied by the investigative agency, etc.

(see, e.g., Supreme Court Decision 2009Do6717, Jun. 30, 201; Supreme Court Decision 2012Do8890, Sept. 13, 2012). Inasmuch as the accompanying to the investigating authority, which was conducted without recognition of legality, constitutes an illegal arrest, and the demand for a drinking test conducted in such unlawful arrest condition was made in a series of processes for the purpose of collecting evidence against the criminal act committed by a driving under the influence of alcohol, the result of said measurement is the result.