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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Since there is a difference between the defendant's driving point of mistake of facts and the point of measurement of blood alcohol concentration, it is highly probable that the blood alcohol concentration of the defendant was 0.05% or more at the time of driving, it is difficult to view that the blood alcohol concentration of the defendant was 0.05% or more at the time of driving, there is an error of mistake of facts in the judgment of the court below that the defendant was driving
B. The lower court’s sentence of unreasonable sentencing (five million won by fine) is too unreasonable.
2. Determination
A. Even if there is an interval between the point of time and the point of time of measuring the blood alcohol level in determining the assertion of mistake of facts and the point of time, and the point of time seems to increase the blood alcohol level, such circumstance alone cannot be deemed insufficient to prove that the blood alcohol level at the time of actual operation exceeds the penalty standard.
In such cases, whether a person can be deemed to have been above the standard level of punishment even at the time of driving shall be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances acknowledged by evidence, such as the time interval between driving and measurement, the difference between the measured blood alcohol concentration and the standard value of punishment, the continuous time and drinking, the driver's behavior level at the time of the measurement, the degree of traffic accident, the circumstance of the accident, and the circumstances.
(Supreme Court Decision 2013Do6285 Decided October 24, 2013, and 2014Do3360 Decided June 12, 2014). According to the evidence duly adopted and examined by the lower court, the Defendant’s final drinking time was 14:30 to 14:53 on November 26, 2013, which is the day of the instant case. The instant traffic accident occurred at around 15:00 on the same day, and the Defendant’s respiratory measurement conducted against the Defendant around 15:53 on the same day, and the blood alcohol concentration was 0.110% on the same day.
There are differences for each individual, but the blood alcohol concentration between 30 minutes and 90 minutes after drinking.