In a disposition to revoke a driver's license made on the ground of a drunk driving, if the blood alcohol concentration is estimated at the time of driving by using the Bamark formula, whether the results of the application of the Bamark formula can be employed if the blood alcohol concentration exceeds 0.05% as a result of calculating the most favorable value for the drinking driver (affirmative with qualification)

In a disposition to revoke a driver's license made on the ground of a drunk driving, if a driver's blood or pulmonary sample is examined after a certain degree of time from the end of the driver's license and the blood alcohol concentration is measured, the blood alcohol concentration at the time of driving can be presumed as a result of reverse calculation by using the so-called Hemark formula. Although a specific person's alcohol decomposition may vary depending on the level of normal alcohol, physical constitution, and speed of alcohol, among the reliable statistical data already known, if the blood alcohol concentration at the time of driving is calculated to exceed 05% by putting the most favorable value to the driver in accordance with the Bamark formula, it can be recognized that the driver's blood alcohol concentration at the time of driving exceeds 0.05%, unless there is any new material about the blood alcohol decomposition quantity at the time of driving, or unless there is a driver's proof that the driver's blood alcohol concentration at the time of driving can exceed the width provided in the statistics data already known as a specific transfer.

Article 41 of the Road Traffic Act, Article 31 of the Enforcement Decree of the Road Traffic Act, Article 26 of the Administrative Litigation Act

Plaintiff

The Commissioner of the Chungcheongnam-do Police Agency

Daejeon High Court Decision 9Nu873 delivered on January 21, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

The presumption of blood alcohol level by the Bamark formula is premised on the decomposition of alcohol level at the time of the driving by a new ambassador with the lapse of time when the person drinks alcohol. As such, in the disposition of driver's license revocation on the ground of the driving of alcohol, if the blood alcohol level is measured after examining the driver's blood or respiratory samples, etc. after a certain degree of time from the end of the driving, the blood alcohol level at the time of the driving can be estimated as a result of reverse production using the so-called Bamark formula. Although the degree of normal alcohol, physical quality, drinking speed, etc. can vary depending on the specific person's time alcohol level, but even if the blood alcohol level at the time of the driving exceeds 0.05% by putting the most favorable value to the plaintiff among the reliable statistical data already known, if the blood alcohol level at the time of the driving exceeds 0.05%, there is new material about the alcohol decomposition level per hour, or if it is proved that the Plaintiff had more than the above 5% alcohol concentration at the time of the driving.

In light of these legal principles and records, the judgment of the court below is just in holding that the plaintiff's blood alcohol concentration exceeds 0.05% at the time of driving as a result of reverse calculation of the time of driving and accident of this case by applying the most favorable value to the plaintiff at around 17:10 on May 27, 1999, and the judgment of the court below is justified, and there is no violation of the rules of evidence, such as incomplete deliberation, violation of the rules of evidence, etc. The ground for appeal cannot be accepted.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)