Defendant

Defendant

Park Ho-hoon

Attorney Kang Jin-ok

Gwangju District Court Decision 2008Dadan2607 Decided November 12, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

One day of detention before a judgment of the court below is rendered shall be included in the period of detention in the workhouse.

The defendant shall be ordered to pay an amount equivalent to the above fine by provisional payment.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

As to the portion of drinking alcohol driving, since the collection of blood collected from the Defendant was not conducted through legitimate procedures, the appraisal report by the National Institute of Scientific Investigation and Investigation on the blood alcohol concentration and the report on the drinking driver's license based thereon are not admissible as evidence of unlawful collection, and there is no other evidence to acknowledge this part of the facts charged, the court below erred by misunderstanding the facts, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendant is too unreasonable.

2. Determination

A. The summary of the facts charged as to the drinking driving portion is as follows: the Defendant was sentenced to a two-year suspended sentence for July on December 28, 2007 to imprisonment with prison labor for violation of the Road Traffic Act (unlicensed driving) at the wooden Branch of the Gwangju District Court on January 5, 2008 and the above sentence became final and conclusive on January 5, 2008, and the same kind of criminal power was more than twice in addition to the present grace period. On June 25, 2008, Naju-si, on June 21, 2008, Nasi-si, on the following day: (a) the Defendant driving of the same kind of motor vehicle with the same kind of criminal power more than twice in addition to the present grace period; (b) the Defendant, at the section of about 10 kilometers in the direction of the orchard located in Yan-si and via the main apartment house located in Yan-dong in Yan-si.

B. In full view of the evidence duly examined and adopted by the court below and the court below, the following facts are recognized.

(1) Around 21:00 on June 25, 2008, the Defendant driven a freight vehicle (vehicle registration number omitted) and proceeded along with a three-lane gate from the Seogpo-si, Seopo-si, Seopo-si, Seopo-si, with a three-lane gate, and the vehicle was placed on the right side of the road, and the vehicle was placed on the issue. The Defendant was sent back to an emergency room of Seopo-si, Seopo-si, ○○ Hospital, after the accident occurred.

(2) At around 21:14 on the same day, Nonindicted Party 1, a police officer called to an emergency room upon receiving the above accident report, appears to be the same that the Defendant in the emergency room drinks alcohol, and the Defendant was also the same as drinking, and the Defendant was also the same as drinking alcohol.

(3) However, since the Defendant lost awareness at the time, it was impossible for him to use a drinking measuring instrument, and it was not possible for him to obtain the consent of the Defendant. Accordingly, Nonindicted Party 1 obtained the Defendant’s consent to blood collection from Nonindicted 2, who is the Defendant’s Dong book, and then let the doctor collect blood using the species without alcohol, but did not obtain a warrant of seizure, search, or verification from the court before and after the collection of blood.

(4) Based on Naom’s appraisal result, the blood of the above Defendant was requested to the National Scientific Investigation Agency for appraisal, and the blood alcohol concentration was 0.255%, the Defendant’s report on detection of the driver Nonindicted 3 by police officers was prepared.

C. Determination

(1) An investigative agency’s collection of blood against a driver’s will is a compulsory disposition in that it is not only accompanied by a direct action against a person’s body, but also is likely to cause an infringement on a person’s physical safety or the fundamental right of human dignity.

(2) In collecting blood against the driver’s will, in principle, ① a warrant of search, seizure, and verification under Article 215 of the Criminal Procedure Act is required. ② Arrest and detention by warrant is conducted, and urgent arrest and seizure, search and inspection incidental thereto is permitted without a warrant in the case of arrest of flagrant offenders (Article 216(1) and (2) of the Criminal Procedure Act). ③ Search, seizure and verification (Article 217 of the Criminal Procedure Act) may be conducted without a warrant within 24 hours from arrest of an article owned, possessed, or kept by the person under emergency arrest (Article 216(3) of the Criminal Procedure Act) or where it is impossible to obtain an urgent warrant at the place of crime during or after the crime without a warrant (Article 216(3) of the Criminal Procedure Act). However, in this case, a post warrant should be issued.

According to the above facts, the blood collection of this case was conducted without a warrant issued by a judge, and there was no ex post facto warrant in accordance with the requirements of the above Paragraph (3) above, and since it does not fall under Paragraph (2) above, the defendant's written appraisal of the National Scientific Investigation Agency for the blood alcohol concentration of the defendant and the principal driver's report based thereon are illegal collection evidence, and there is no other evidence to prove this part of the facts charged, and it cannot be viewed differently just because the blood collection was conducted with the consent of the defendant's family. Thus, this part of the defendant's argument is with merit.

3. According to the conclusion, an appeal against a defendant's violation of the Road Traffic Act (driving) is reasonable, and this part of the facts charged is related to the remaining facts charged and commercial concurrent crimes, and the judgment of the court below cannot be maintained as it is. Thus, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without making a decision on the defendant's assertion of unfair sentencing, and the judgment below is reversed, and the pleading is

On December 28, 2007, the Defendant was sentenced to a suspended sentence of two years for a violation of the Road Traffic Act (unlicensed Driving) in the Gwangju District Court Branch on July 5, 2008, and was sentenced to a suspended sentence of two years on January 5, 2008, and the said sentence became final and conclusive as of January 5, 2008, and is now more than twice the criminal records of the same kind of crime than in the present grace period. On June 25, 2008, the Defendant driving a motor vehicle of the same kind, without obtaining a driving license, at a section of about 10 km from the front side of the orchard located on the 1st century to the entrance of the irrigation village located in the Sigsan-dong.

1. Defendant's legal statement;

1. The actual condition survey report;

1. Registers of driver's licenses;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 152 subparagraph 1 of Article 152 and Article 43 (Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Of the facts charged in the instant case, the summary of the violation of the Road Traffic Act (driving without a license) is as set forth in Paragraph (2)(A). As examined in Paragraph (2)(c) of the said Article, the facts charged constitute a time when there is no proof of a crime and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the facts charged in this part of the facts charged and the facts charged are found guilty of the violation of the Road Traffic Act (driving without a license) which

Judges Lee Jong-won (Presiding Judge)