The case holding that the defendant does not have a duty to respond to a request for sobreath test by a police officer in light of the circumstances where the defendant drives a vehicle in a state of driving, driving distance, hours of driving, circumstances where a police officer demanded a sobreath test by driving the defendant.

Article 41 of the Road Traffic Act, and Article 107-2 of the same Act

Defendant

Defendant

Seoul Criminal District Court Decision 92Da2826 delivered on July 27, 1992

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the grounds for appeal by the defendant is as follows: while the defendant was divingd after drinking alcohol at the defendant's house at the time of the crime of this case, the defendant's vehicle owned by the defendant who was parked in the front site before his house, and the other vehicles parked along the above vehicle cannot get out of the vehicle which is parked in the front site before his house, and there is a fact that the above vehicle was parked by driving about about five meters after driving it at the parking lot, but the above driving place is not a road under Article 2 subparagraph 1 of the Road Traffic Act because it is a reason adjacent to India and is not a road under Article 2 subparagraph 1 of the Road Traffic Act, the court below erred by misunderstanding the facts or misunderstanding the legal principles of the crime of violation of the Road Traffic Act, thereby admitting the fact that the remaining defendant

Even if the above defendant had no reason to suspect that he was under the influence of alcohol by taking advantage of his own body before the judgment on the place of appeal, it appears that the above defendant was under the influence of alcohol, and thus, the defendant would be subject to imprisonment with prison labor for not more than two years or a fine not exceeding three million won. Article 41 (2) of the same Act provides that if it is deemed necessary for the safety of traffic and prevention of danger, the police officer shall take measures to ensure that the driver was under the influence of alcohol, and the driver shall have the authority to measure the drinking of the above police officer, and if the defendant would be subject to punishment for his refusal of drinking, it would be necessary to remove the traffic accidents caused by the driving of the police officer who would be under the influence of alcohol at the time of his own request, and to punish the driver of the above police station by taking into account the circumstances that the defendant would have been under the influence of alcohol again, and thus, it would be necessary for the police officer to take measures to prevent danger and injury of traffic.

Thus, it is unlawful to compel the defendant, who clearly made it clear that the above Han-gu would not arbitrarily comply with the sobreath test, to comply with the sobreath test is illegal because it does not meet the requirements for compelling a driver under Article 41 (1) of the Road Traffic Act, and therefore, even if the defendant did not comply with the request, it shall not be punished in accordance with Article 107-2 (2) of the Road Traffic Act.

Ultimately, the court below which found the defendant guilty of the facts charged of this case shall be deemed to have committed an unlawful act of misunderstanding facts in violation of the rules of evidence or by misunderstanding the legal principles of the crime of violating the Road Traffic Act.

Accordingly, this Court decides that the judgment of the court below is reversed ex officio in accordance with Article 364 (2) of the Criminal Procedure Act, and following the pleading.

The summary of the facts charged in this case is as follows: "The defendant is the driver of the (automobile registration number omitted) passenger car, and the defendant driving the above vehicle under the influence of alcohol in front of the defendant's house located in the new 2-dong, Gwanak-gu, Seoul Special Metropolitan City on October 9, 191 to the extent that his body cannot be accumulated in the front of the defendant's house located in the new 2-dong, Nowon-gu, Seoul Special Metropolitan City on the 14:00 on the 14:00 on the 1991, and he refuses to comply with the breath test of the police officer, even though he was controlled by the police officer and was requested to take a breath of the police officer's breath of the police station new police station where he was on patrol duty in the Dong office, and thus he did not comply

It is so decided as per Disposition for the above reasons.

Judges Gangnam-gu (Presiding Judge)