The defendant's appeal is dismissed.

Summary of Grounds for Appeal

Since the Defendant had attempted to comply with a police officer’s request for alcohol measurement at the time of the instant case, the Defendant could not sufficiently breath in the respiratory measuring instrument, and did not intentionally refuse a police officer’s request for alcohol measurement without good cause.

Nevertheless, the court below found the defendant guilty of the facts charged in this case on different premise, and the court below erred by misunderstanding of facts or misunderstanding of legal principles.

The sentence of the lower court on unreasonable sentencing (fine 5 million won) is too unreasonable.

피고인의 사실오인 및 법리오해 주장에 관한 판단 관련 법리 술에 취한 상태에 있다고 인정할 만한 상당한 이유가 있는 운전자가 호흡측정기에 숨을 내쉬는 시늉만 하는 등으로 음주측정을 소극적으로 거부한 경우라면, 소극적 거부행위가 일정 시간 계속적으로 반복되어 운전자의 측정불응의사가 객관적으로 명백하다고 인정되는 때에 비로소 음주측정불응죄가 성립한다

(2) Article 44(2) of the Road Traffic Act provides that “When there are reasonable grounds to recognize that a person drives a motor vehicle, etc. under the influence of alcohol, a police officer may measure whether the person under the influence of alcohol was under the influence of alcohol,” and the driver is obliged to comply with such a measurement. However, a police officer cannot demand a breath measurement even in a case where the breath measurement by the breath is impossible or extremely difficult due to a driver’s physical disorder. In such a case, even if a police officer requests a breath measurement by the breathr despite the driver’s physical condition, and the breath measurement by the breath measuring instrument was not proper.”