The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The defendant's act of mistake of facts and misapprehension of legal principles does not constitute refusal of drinking measurement.

The police officer arrested the defendant as an offender in the act of committing a crime even though it is objectively unclear that the defendant has no intention to respond to a drinking test.

Nevertheless, the judgment of the court below which found the defendant guilty is erroneous in misunderstanding of facts or misunderstanding of legal principles as to Article 44 (2) of the Road Traffic Act

B. The sentence imposed by the court below on the defendant (5 million won of fine) is too unreasonable.

2. Determination

A. Determination of misunderstanding of facts and misapprehension of legal principles on the assertion of mistake of facts and the assertion of misunderstanding of legal principles must be understood as a method of measuring a breath to objectively convert the degree of drinking from a driver to a breath under Article 44(2) of the Road Traffic Act (see, e.g., Supreme Court Decisions 9Do5377, Mar. 10, 200; 2008Do2170, May 8, 2008). However, it is reasonable to view that police officers have a certain degree of discretion on the method of measuring alcohol or the degree of drinking, to the extent necessary to measure the degree of drinking or the degree of drinking (see, e.g., Supreme Court Decisions 92Do220, Apr. 28, 1992; 200Do3777, Apr. 28, 199).

"A driver who fails to comply with a measurement by a police officer" under Article 148-2 (1) 2 of the Road Traffic Act means a driver who has reasonable grounds to recognize that he/she is under the influence of alcohol in light of the overall progress of the case.