The prosecutor's appeal is dismissed.

1. Despite the fact that the blood alcohol content of the defendant's blood alcohol content was calculated most favorable to the defendant and calculated through the Madmark official formula, the part of the court below's decision that the defendant's physical absorption rate exceeds 0.7 is erroneous in the misapprehension of facts.

In addition, the fact that the defendant did not take measures to prevent excessive measurements due to remaining alcohol in the mouth, such as making the defendant put his/her water in his/her place of preparation on his/her water, is not a problem at all in the trial, and the finding of the defendant not guilty is also illegal.

2. Determination

A. The blood alcohol level at the time of driving can be presumed as a result of a veterinary calculation by using the so-called submark formula if it is not possible to measure the blood alcohol level by examining the driver's blood, pulmonary and other samples immediately after driving. However, if the driver uses the empirical rule, such as scientific formula, to find out whether the constituent elements of the crime exist or not, it requires strict certification as to individual and specific facts which are the premise for the application of the rule of law.

In the case of the Badmark formula, it is necessary to keep the volume of alcohol consumed and the weight of alcohol taken in as data for its application, and it is necessary to provide strict proof.

Furthermore, the estimation method of the blood alcohol concentration according to the Badmark formula has parts concerning the highest blood alcohol concentration due to the absorption and distribution of alcohol and decomposition and extinguishment due to time passage. Among them, the calculation of the highest blood alcohol concentration may have an impact on the results of the internal absorption rate of alcohol taken in and the sexual breathesis, etc., and the degree of food under the disguised alcohol concentration may vary depending on the quality of each individual, the kind of drinking alcohol, the drinking speed, and the degree of food under the disguised drinking.