beta
Text
The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Although the Defendant, by a police officer’s request for the measurement of alcohol, did not breath in a drinking measuring instrument; however, due to an error in a drinking measuring instrument, the blood alcohol level was not measured, the Defendant cannot be deemed to have refused to comply with a request for the measurement of alcohol without justifiable grounds.
Nevertheless, the court below found the defendant guilty of the facts charged of this case, and the court below erred by misunderstanding facts and affecting the conclusion of the judgment.
B. The sentence of the lower court that is unfair in sentencing (7 million won) is too unreasonable.
2. Determination
A. As to the assertion of factual misunderstanding, according to Article 44(2) of the Road Traffic Act, a person who drives a motor vehicle under the influence of alcohol.
In a case where there is a reasonable reason to determine a person, police officers may take a breath test of whether a driver is under the influence of alcohol, and the driver is obliged to comply with such test, but the driver cannot demand such a breath test even when the breath test is unable or extremely difficult to take a breath test due to reasons such as a driver’s physical disorder, etc., and in this case, police officers requested a breath test of the breath test and failed to put the breath test of the breath in the degree that the breath test of the driver
Even if it cannot be deemed a non-compliance with a drinking test (see, e.g., Supreme Court Decision 2010Do2935, Jul. 15, 2010) (see, e.g., Supreme Court Decision 2010Do2935, Jul. 15, 2010). 2) The following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, namely, ① the Defendant requested a police officer to have a drinking driver at the time of the instant case to take a drinking test from H who was dispatched after receiving a report. At that time, the Defendant was able to take a breath test from a police officer’