The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 7,000,000.

The above fine shall not be paid by the defendant.

1. Summary of grounds for appeal;

A. There was no reasonable ground to believe that the Defendant was under the influence of alcohol in light of misunderstanding of facts and misunderstanding of legal principles at the time of the instant case, and the Defendant did not notify the Defendant of the opportunity to breath and the disadvantage resulting from the Defendant’s refusal to take a breath test, and the Defendant’s demand to collect blood was lawful, and thus, the Defendant cannot be said to have refused a breath test

B. The lower court’s sentence of unreasonable sentencing (two years of imprisonment with labor for six months and two years of probation and 120 hours of community service) is too unreasonable.

2. Determination

A. Determination of misunderstanding of facts and misapprehension of legal principles as to the assertion of misunderstanding of facts. First, in order to establish a crime of non-compliance with a drinking test, the driver at the time of the request for a drinking test must be in the state of blood alcohol level of at least 0.05%, but there must be reasonable grounds to recognize that the driver was in the state of at least 0.05% of blood alcohol level at the time of the request for a drinking test. Furthermore, whether there are reasonable grounds to recognize that the driver was under the influence of alcohol should be determined by comprehensively considering the objective circumstances, such as the individual driver's external behavior of the driver at the time of the request for a drinking test (see, e.g., Supreme Court Decisions 2002Do632, Jan. 24, 2003; 2004Do5249, Oct. 14, 2004; i.e., the evidence duly admitted and investigated by the court below that the defendant had been under the influence of alcohol at the time of drinking.