(영문) 대법원 2005.10.28.선고 2005도6575 판결

Article 107-2 (2) of the Road Traffic Act is established when a person who has a reasonable ground to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 41 (2) of the same Act. The term "under the influence of alcohol" in this context refers to a person under the influence of alcohol at least 0.05% in blood alcohol level, which is punished for a crime of drunk driving. Thus, in order to establish a crime of non-compliance with a measurement of alcohol level, a driver must not be in the state above 05% in blood alcohol level at the time of the request for a measurement of alcohol level, but there must be reasonable grounds to recognize that the driver is in the state above 0.05% in blood alcohol level at least 0.0% in alcohol level. Furthermore, whether there are reasonable grounds to recognize that the person under the influence of alcohol was under the influence of alcohol should be determined by comprehensively considering the objective circumstances such as individual driver's appearance behavior, etc. (see, e.g., Supreme Court Decision 2003Do6263).

On August 30, 2004, on the day of the pertinent driving, the Defendant was found to have complied with a drinking test by a police officer at around 00: 22:00 on August 30, 2004, even though he was found to have a drinking test at a drinking-free test; however, according to the detection report and the Statement of Detoxication Statement (Investigation Record 4, 5 pages) at the time, the Defendant appeared to have a drinking-free test at the time, so the Defendant was suspected of having a drinking-free test at the time, but the Defendant was suspected of having a drinking-free test at the time, but the Defendant’s blood color was red and walking condition and was a normal condition. Furthermore, even if the Defendant’s blood alcohol concentration was calculated by the above-mark public formula, it was considerably short of 08% of the criteria under which driving was prohibited, and it was difficult to recognize that the Defendant had a drinking-free test at the time of the request for a drinking-free test at least 0% of alcohol level.

In addition, Article 107-2 (2) and Article 41 (2) of the Road Traffic Act shall not be deemed to be a crime of non-compliance with the measurement of alcohol under the Road Traffic Act.

Therefore, the court below found the defendant guilty of the facts charged of this case shall be deemed to have committed an unlawful act which affected the conclusion of the judgment by misunderstanding the legal principles as to the crime of non-compliance with the alcohol measurement under the Road Traffic Act. Therefore, the ground of appeal assigning this error

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.