Whether a police officer may request a test by a drinking-free measuring instrument, which is the prior procedure for a test by a drinking-free measuring instrument, in order to confirm whether a driver's drinking or the degree of drinking (affirmative)

Articles 44(2) and 148-2(1)2 of the Road Traffic Act

Supreme Court Decision 92Do220 Decided April 28, 1992 (Gong1992, 1782), Supreme Court Decision 99Do5377 Decided March 10, 200, Supreme Court Decision 2008Do2170 Decided May 8, 2008, Supreme Court Decision 2013Do8481 Decided December 24, 2015 (Gong2016Sang, 262), Supreme Court Decision 2016Do16121 Decided June 8, 2017 (Gong2017Ha, 1496)

Defendant

Defendant and Prosecutor

Law Firm Masung, Attorney Shin Jae-soo

Seoul Western District Court Decision 2016No1399 decided March 23, 2017

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

A. Of the facts charged in the instant case, the summary of the violation of the Road Traffic Act (recognition refusal) is as follows: (a) the Defendant, on June 11, 2016, arrested as a flagrant offender under the suspicion of obstruction of performance of official duties and transferred to the ○○○ area as of June 11, 2016; and (b) took full account of the following: (c) the arrest process; (d) the Defendant’s blood color is red and red; and (e) the Defendant’s drinking reaction during a drinking-free test against the Defendant; and (e) there was a significant reason to recognize that the Defendant was driving under the influence of alcohol; and (e) upon receiving a demand from Nonindicted 1 of the police officer for a drinking test from the police officer, rejected the demand for a drinking-free test by a police officer for three minutes or more without justifiable reason.

The court below held that the crime of violation of the Road Traffic Act is not established even if the defendant refused a request for a test by a drunk on the ground that the test conducted by a police officer to ascertain whether a driver under Article 44 (2) of the Road Traffic Act is the same as the re-harm measuring instrument, which simply reduces drinking, on the ground that it cannot be deemed that the defendant's refusal of a request for a test by a drunk is the same as the re-harm measuring instrument, on the ground that the test conducted by a police officer to identify whether a driver under the provision of Article 44 (2) of the Road Traffic Act does not constitute a crime of violation of the provision of the Road Traffic Act, in addition to the fact that a test by a drunk is used as a means of objectively confirming the requirements to measure drinking.

B. However, we cannot accept the above determination by the court below for the following reasons.

(1) A measurement conducted by a police officer to ascertain whether a driver under Article 44(2) of the Road Traffic Act is under the influence of alcohol shall be understood as a measurement conducted by a drinking measuring instrument, i.e., a method of objectively converting the degree of drinking from the respiratory and objectively converting the degree of drinking (see, e.g., Supreme Court Decisions 9Do5377, Mar. 10, 200; 2008Do2170, May 8, 2008). However, it is reasonable to deem that a police officer has a certain degree of discretion as to the method of measurement and frequency of drinking or the degree of drinking to the extent necessary to measure whether a driver is under the influence of alcohol or the degree of drinking (see Supreme Court Decision 92Do220, Apr. 28, 192). Thus, it is reasonable to deem that a police officer is closely related to the method of a test conducted by a drinking measuring instrument, other than to request a driver to put the drinking in the front while presenting it in the front.

"A case where a police officer fails to comply with a breath test" under Article 148-2 (1) 2 of the Road Traffic Act means a case where it is objectively evident that a driver who has a reasonable ground to be deemed to be under the influence of alcohol has no intention to respond to a breath test in light of the overall progress of the case. In a case where a police officer requests a test by a breath test at the prior stage of a breath test in order to confirm whether a driver who has a reasonable ground to recognize that a police officer is under the influence of alcohol is under the influence of alcohol, if the result of the test is planned to take a breath test according to the breath test, and the driver expressed his intention to refuse a breath test by explicitly refusing a breath test even though he knows such circumstance, the act of refusing a test by

(2) However, according to the evidence duly admitted by the court below, the following facts are revealed.

① At around 05:10 on June 11, 2016, Nonindicted Party 2, who was a witness, testified that the Defendant had been on board and driving again after having set the model and the number of the vehicle, and reported a drunk driving to 112.

② Upon receipt of the report, Nonindicted Party 1: (a) discovered the Defendant’s vehicle in the atmosphere of the ○○○○ Area where he was working immediately; (b) requested the Defendant to leave the window and move the vehicle to the right edge of the road by leaving the vehicle in front of the traffic signal; (c) but the Defendant did not seem to have any response without operating his mobile phone or starting the vehicle. Nonindicted Party 1, a police officer Nonindicted Party 1, who was in the atmosphere of the traffic signal, demanded the Defendant to leave the vehicle to the right edge of the road. While Nonindicted Party 3, a police officer Nonindicted Party 3, followed Nonindicted Party 3, demanded the Defendant to stop the vehicle more than 10-15 meters and stop on 2-3 occasions without complying therewith, and the Defendant continued to stop the vehicle to the right edge of the road while Nonindicted Party 3 was able to get off the vehicle by getting the driver’s hand on the right edge; and (d) when Nonindicted Party 3 started the vehicle to stop on the left side of the road by getting out of the road patrol.

③ Nonindicted 1 and Nonindicted 3, etc., who followed the Defendant’s vehicle driving away, carried the Defendant’s vehicle onto the Defendant’s vehicle and Nonindicted 4, by putting the front door of the driver’s seat. In addition, the Defendant was snicking and snicking, snicking, snicking, and snicking, and Nonindicted 4 did not fully snick the Defendant’s body.

④ At around 05:45 on the same day, Nonindicted 5 notified the Defendant, who was on the vehicle, to be arrested as suspicion of special obstruction of performance of official duties, and arrested the Defendant as an offender in the act of committing an act of committing an act of committing an offense, and led Nonindicted 1 to the nearby ○○○○ area. From the next day to 06:30 on the same day, Nonindicted 1 demanded the Defendant to respond to an examination for drinking alcohol in the said district, and at the same time demanded Nonindicted 1 to sign the report on the circumstantial statement of the driver at the same time. However, the Defendant failed to comply with the said demand by refusing to disclose personal information on the ground of his/her refusal to arrest or investigate, and was unable to escape the police officer’s desire to walk or neglect his/her hair in the ○○ area.

⑤ The Defendant stated at the time of the police investigation conducted after he was transferred from the said district police station to the △△ Police Station that he was unable to respond to the measurement of drinking too much due to the illegal arrest of himself and Nonindicted 4 or the damage of his own vehicle.

6. Meanwhile, the Defendant’s arrest was 4 hours later and the Defendant’s arrest was found to have a red color that leads to not less than 0.1% of blood alcohol concentration at an examination conducted by the △△ Police Station.

(3) In full view of the background leading up to the arrest of the Defendant in the act of committing a crime, the Defendant’s condition at the time of the request for the test by a drinking-free test, and the Defendant’s attitude, which appears to have been made after receiving the Defendant’s request for the test, etc., it is sufficient to deem the Defendant to have been driving a motor vehicle under the influence of alcohol at the time. Accordingly, even though Nonindicted 1 demanded by the police officer to conduct a test by a drinking-free test by the prior stage of the measurement by the drinking-free measuring instrument, it is sufficient to deem that the Defendant explicitly refused the request, and that the Defendant explicitly expressed his intention not to respond to the request for a measurement by the drinking-free measuring instrument, and it is reasonable to deem such act of the Defendant constitutes the crime of violating the Road Traffic Act (Refusal of

(4) Nevertheless, the court below found the Defendant not guilty of the violation of the Road Traffic Act (Refusal of measurement) among the facts charged in the instant case for reasons indicated in its holding. In so doing, the court below erred by misapprehending the elements of the violation of the Road Traffic Act (Refusal of measurement) and the legal principles on the meaning of measurement by police officers under Article 44(2) of the Road Traffic Act, thereby adversely affecting the conclusion of the judgment. The prosecutor’s ground of appeal pointing

(5) Meanwhile, the prosecutor appealed the guilty portion of the judgment below, but the notice of appeal does not state the grounds for appeal, and the appellate brief does not state the grounds for appeal.

2. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court is justifiable to have found the Defendant guilty of obstruction of the performance of special duties among the facts charged in the instant case on the grounds stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence

3. Scope of reversal

Of the judgment of the court below, the non-guilty part of the judgment of the court below should be reversed. Since this part and the remaining guilty part are concurrent crimes under the former part of Article 37 of the Criminal Act and a single sentence should be sentenced to the whole. Thus, the judgment of

4. Conclusion

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.

Justices Kim Yong-deok (Presiding Justice)