[1] In a case where a driver fails to comply with a drinking test due to a physical disorder, etc., whether a crime of non-compliance with a drinking test constitutes a crime (negative)

[2] The case affirming the judgment of the court below which held that the defendant cannot be viewed as failing to comply with the drinking test on the ground that it was difficult for the defendant to breathely breath due to the pain at the time of the drinking test in light of the defendant's frame and degree of the body part of the body of the defendant who suffered from a traffic accident, and that the result

[1] Article 41(2) and (3) of the Road Traffic Act (amended by Act No. 7545 of May 31, 2005), when there are reasonable grounds to recognize that a person was driving a motor vehicle, etc. under the influence of alcohol, the police officer is obligated to comply with such a measurement. However, a police officer is not obliged to take such a breath measurement even when the breath measuring instrument is impossible or extremely difficult to measure due to a driver's physical disorder, etc. (i.e., a police officer must take such a measurement by omitting the breath measuring instrument, obtain the driver's consent or obtain a warrant issued by a judge after obtaining the blood collection). In such a case, even if a police officer requests a breath measuring instrument to take a breath test despite the driver's body or body, and even if a police officer failed to properly take a breath measurement by a breath measuring instrument, it cannot be deemed that the breath measuring instrument failed to comply with such a breath measurement.

[2] The case affirming the judgment of the court below that the defendant cannot be deemed to have refused to take a drinking test on the ground that it was difficult for the defendant to breathely breath due to the pain at the time of a drinking test in light of the defendant's frame and degree of the body of the body of the defendant who suffered from a traffic accident, and that the result was found that the

[1] Article 41 (2) and (3) of the Road Traffic Act (amended by Act No. 7545 of May 31, 2005) / [2] Article 41 (2) and (3) of the Road Traffic Act (amended by Act No. 7545 of May 31, 2005), and Article 107-2 subparagraph 2 of the Road Traffic Act

[1] Supreme Court Decision 99Do5210 delivered on April 21, 2000 (Gong2000Sang, 1336) Supreme Court Decision 2001Do7121 Delivered on March 15, 2002 (Gong2002Sang, 9Do44 delivered on October 25, 2002) Supreme Court Decision 2002Do4220 Delivered on October 25, 2002 (Gong202Ha, 2931)

Defendant

Prosecutor

Seoul Central District Court Decision 2005No1712 Decided August 30, 2005

The appeal is dismissed.

Article 41(2) and (3) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) interpretation of Article 41(2) and Article 41(3) of the same Act. In a case where there are reasonable grounds to recognize that a person driving a motor vehicle, etc. under the influence of alcohol, police officers are under the influence of alcohol, and the person is obligated to comply with such a measurement. However, a police officer is not obliged to take such a breath measurement even when it is impossible or extremely difficult for the breath to measure the breath due to reasons such as a driver's physical disorder, etc. (i.e., a police officer is required to take such a measurement by the breath, obtain the driver's consent, or obtain the warrant issued by a judge to take a breath test by the breath, despite a driver's body or body, even if a police officer failed to properly take a breath measurement by the breath measuring instrument.

Based on adopted evidence, the court below found the defendant guilty of the charges of this case on the following grounds: (a) the defendant suffered from injury, such as duplicating fry, duplic fry, and supke fry, which require approximately eight weeks of medical treatment due to the traffic accident of this case; (b) the defendant's cuplicating body and degree of the body part of the defendant caused by the above injury, in light of the above injury, a large amount of suplicating supkes should increase; (c) the defendant raised severe pains due to a buplicing move; (d) the defendant appealed from the first emergency room immediately after the accident occurred; and (e) the police officer requesting a drinking measurement, who has been unable to take a drinking test more than 20 hours but failed to complete a drinking test; and (e) the defendant did not appear to have failed to comply with the drinking test result due to the drinking test of this case.

In light of the above legal principles and records, the fact-finding and judgment of the court below is just, and the judgment below did not err in the misapprehension of the rules of evidence or misconception of facts against the rules of evidence as alleged in the grounds of appeal.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)