Defendant

Defendant

E-Councils

Attorney Seo-yang

Seoul Central District Court Decision 2005 High Court Decision 497 Decided June 2, 2005

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal by the defendant;

At the time of the instant case, the Defendant was found guilty of the facts charged in the instant case, even though the Defendant was breath and breathly in response to the police officer’s demand for sobreath measurement, but the Defendant did not have to have been breathd in the wind that caused injuries, such as cage cages, due to traffic accidents, and thus did not have to have been properly breathed. However, the lower court erred by misapprehending the facts and affecting the conclusion

2. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is as follows: "A person driving (number omitted) a car driving on September 3, 2004 at around 06:19, the defendant's house located in Gangseo-gu Seoul Metropolitan Government, driving approximately 20 km from the defendant's house to the intersection of the Seoul Station located in Gangseo-gu, Seoul, Jung-gu, Seoul, about 122 meters. The defendant was arrested to police officers for considerable reasons for driving while under the influence of alcohol, such as smelling, drinking, and face with red, and refused to measure the demand for alcohol measurement conducted for more than 20 hours within the Red Cross Hospital located in Seodaemun-gu, Seoul, and the court below convicted him/her based on evidence of the judgment.

3. Judgment of the court below

(a) Facts of recognition;

The following facts can be acknowledged according to the evidence duly examined and adopted by the court below and the statement of Non-Indicted 1’s witness in the court of original instance, the confirmation of hospitalization of Non-Indicted 1’s doctor, the confirmation of Tongwon, the copy of the medical records, and the fact-finding on Non-Indicted 2’s Council members of non-Indicted 2

1) On September 3, 2004, the Defendant driven a car volume at around 06:19 (number omitted) and started from the Defendant’s house located in Gangseo-gu Seoul Metropolitan Government and was faced with a vehicle damaged by a street, etc. on the sidewalk at the Seoul Jung-gu Intersection, Jung-gu, Seoul, Seoul, where the 2nd-dong 2 was faced with a vehicle on the sidewalk at the Seoul Central Intersection.

2) The Defendant: (a) placed an injury in need of approximately 8 weeks’ medical treatment, such as a fresh fresh fresh fresh, a chresh fresh, a chresh fresh, a space fresh, and an open space; (b) placed the vehicle at the edge of the road near the cab; and (c) went to the emergency room of the Red Cross Hospital located in Seodaemun-gu Seoul Metropolitan Government. (d) Nonindicted 3 was in the emergency room of the above hospital due to the said accident, divided the Defendant’s body into the Defendant’s appeal, and confirmed that there was pressure on the upper part of the left fresh, etc. of the said accident; and (c) at the time, the Red Cross Hospital was unable to treat the upper part of the cresh because it did not have sexual surgery in the Red Cross Hospital; and (d) the Defendant was waiting for contact with the outside part of the fresh 2 to the outside part of the hospital (hereinafter referred to as the 9th part of the emergency room).

4) On the same day, Nonindicted 4, a police officer Nonindicted 4, who received a traffic accident report, called the Defendant’s mobile phone number attached to the said accident vehicle, confirmed that the Defendant was in the Red Cross Hospital, and demanded the Defendant to take a alcohol alcohol test while asking the Defendant who was in the emergency room the circumstances leading up to the accident, after finding the Defendant as the above hospital around 06:40.

5) Although the Defendant was unable to sustain a breath of a drinking gauge, Non-Indicted 4 did not properly take a drinking test, and demanded the replacement of a breath and the replacement of a breath. The Defendant appealed with a breath, but Nonindicted 4 demanded that the Defendant comply with a continuous drinking test.

6) Ultimately, the Defendant was unable to take a drinking test more than 20 hours, but failed to take a drinking test, and Nonindicted 4 demanded the Defendant to collect blood, and when the Defendant refused to do so, the Defendant applied for a search and seizure warrant to collect blood.

7) Among them, the Defendant and Nonindicted 4 entered the Defendant’s home to Nonindicted Party 1 who was in the Defendant’s home. Nonindicted 4 obtained a search and seizure warrant at least 3 p.m. on the same day, and sought the Defendant’s blood and requested appraisal to the National Institute of Scientific Investigation, but there was a result of the appraisal that the blood alcohol concentration is less than 0.010%.

8) After that, on September 7, 2004, the Defendant received hospitalized treatment for approximately 41 days, including an operation of metal fins, etc. in body from Nonindicted Party 1’s department.

B. Determination

In light of the following circumstances acknowledged by Nonindicted 1’s testimony at the court of the above facts and the court of the trial, the Defendant: (a) suffered injuries, such as a cage cage cage cage cages and susll cages, etc., due to traffic accidents at the time of the instant case; (b) in such a case, in light of the Defendant’s structural part and degree of the body part of the body of the bar, a large amount of chest cages should be increased; (c) the Defendant raised severe pains due to cage cages; (d) immediately after the accident occurred, the Defendant complained of cages to the training doctor from the time when the first emergency room was arrived after the accident; and (e) the Defendant still appealed to Nonindicted 4 of the police officer who demanded a drinking test. As such, it is difficult to view that the Defendant was unable to take a debage due to the alcohol test at the time of the alcohol test at the time of the instant case; and (e) there was no evidence to deem that the Defendant was no other evidence to acknowledge drinking measuring for drinking measuring.

Therefore, although the facts charged of this case constitute a crime without proof, the court below erred by misapprehending the facts and finding the guilty of the above facts charged.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

The summary of the facts charged against the defendant is as stated in Paragraph (2) above. As stated in Paragraph (3) above, the above facts charged constitute a case where there is no proof of facts charged, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Choi Jung-hee (Presiding Judge)