The defendant's appeal is dismissed.

1. The summary of the grounds for appeal (the factual error, the misapprehension of the legal principle) was limited to a temporary refusal to measure alcohol, and it is not clear that the defendant has no intention to respond to the measurement of alcohol.

Nevertheless, the lower court found the Defendant guilty of the facts charged of this case and erred by misapprehending the legal doctrine on the refusal of drinking alcohol measurement.

2. The Defendant asserted in the lower court as the same in the trial, and the lower court found the Defendant guilty of the instant facts charged by comprehensively taking account of the circumstances revealed through the evidence duly adopted and examined.

"Cases of failing to comply with a police officer's measurement" under Article 148-2 (1) 2 of the former Road Traffic Act (amended by Act No. 16037, Dec. 24, 2018) refers to cases where it is objectively evident that a driver who has reasonable grounds to recognize that he/she is under the influence of alcohol has no intention to respond to a drinking test in light of the overall progress of the case.

(see, e.g., Supreme Court Decision 2017Do5115, Jun. 15, 2017). Moreover, it cannot be deemed that a crime of non-compliance with the measurement under the penal provision is established even if such non-compliance with the measurement was committed even if such non-compliance with the second measurement, such as where such non-compliance with the second measurement was merely temporary, as the police officer did not comply with the second measurement.

따라서 술에 취한 상태에 있다고 인정할 만한 상당한 이유가 있는 운전자가 호흡측정기에 숨을 내쉬는 시늉만 하는 등으로 음주측정을 소극적으로 거부한 경우라면, 그와 같은 소극적 거부행위가 일정 시간 계속적으로 반복되어 운전자의 측정불응의사가 객관적으로 명백하다고 인정되는 때에 비로소 음주측정불응죄가 성립한다고 보아야 하고, 그 경우 운전자의 측정불응의사가 객관적으로 명백한 것이었는지는...