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The defendant's appeal is dismissed.
Reasons
1. The defendant's act of refusing a police officer's demand for measurement of drinking while the defendant voluntarily commits an illegal act does not constitute a crime of violating the Road Traffic Act;
2. (1) The legality of accompanying is recognized in a case where it is clearly proven by objective circumstances that an investigator was carried out by the suspect’s voluntary will of the suspect solely, such as where the suspect, who was informed that the investigator could refuse the accompanying of the suspect prior to the accompanying, while accompanying the suspect in the course of the investigation, was aware that the suspect could freely leave or could leave the accompanying place at any time.
In addition, the determination of the voluntariness in such voluntary behavior should be based on objective circumstances, comprehensively taking into account various circumstances, such as the time and place of accompanying, the method of accompanying, the existence of intent to refuse accompanying, the method of investigation after accompanying, and the existence of the intention to leave.
Meanwhile, the crime of non-compliance with the measurement of alcohol under Article 148-2 (1) 2 of the Road Traffic Act is established when a person who has reasonable grounds to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 44 (2) of the same Act
In light of the provisions of Article 44 (2) of the Road Traffic Act, if there are reasonable grounds to recognize that a driver has driven a motor vehicle while under the influence of alcohol and it is necessary to confirm whether a driver has driven a motor vehicle, etc., then it is evident that a police officer cannot confirm whether a driver has driven a motor vehicle by means of an ex post facto alcohol test, unless it is clear that a police officer may request a driver to measure the alcohol, and if the driver fails to comply with it, the crime of non-compliance with a alcohol test under Article 148-2 (1)
Supreme Court Decision 2014Do105 Decided December 11, 2014