The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. The Defendant, by misapprehending the legal doctrine, was unlawfully arrested.

Therefore, the investigative documents prepared in the state of illegal arrest are inadmissible.

B. The Defendant did not drive a motor vehicle in mistake.

2. On January 22, 2015, the Defendant, while under the influence of alcohol 0.161% of the blood alcohol concentration around 17:20 on January 22, 2015, driven a DNA cargo vehicle with approximately KRW 1 km away from the 2nd road of Yongcheon-si, Yongcheon-si.

3. The lower court found the Defendant guilty of the facts charged in full view of the evidence as indicated in the lower judgment, such as the Defendant’s legal statement, witness E’s legal statement, and investigation report by police officers visiting the scene.

4. 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 consent by an investigator in the course of an investigation does not have any means to restrain the physical freedom of the suspect even though it is substantially similar to the arrest, and thus it is not institutionally arbitravable as well as practical arbitracy. In addition, there is a high possibility that the Constitutional Act and the Criminal Procedure Act do not provide various rights guarantee devices to the suspect who is arrested or detained on the ground that it is before the regular arrest or detention stage.

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 had been 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 could leave the accompanying place at any time, etc.

Supreme Court Decision 2009Do6717 Decided June 30, 201 and Supreme Court Decision 2009Do6717 Decided September 13, 2012