[1] The credibility of the blood alcohol concentration measurement conducted by the pulmonary tester while the breath in a state where the breath in question was not part of his/her equipment

[2] The case holding that in a case where the blood alcohol concentration measured by the pulmonary measuring instruments without standing to put the draft in water at the end of four hours after drinking end and the blood alcohol concentration measured by the pulmonary measuring instruments is 0.05%, the above evidence alone is insufficient to recognize that the Defendant driven a motor vehicle while under the influence of alcohol above 0.05%

[1] The measurement of the blood alcohol concentration by the pulmonary measuring instrument is conducted to measure the pulmonary alcohol concentration by absorbing in the pulmonary measuring instrument so that the alcohol which is used in blood is emitted into the pulmonary air when it passes through the waste. Thus, it cannot be concluded that the blood alcohol concentration by the pulmonary measuring instrument alone cannot be readily concluded that the blood alcohol concentration by the pulmonary measuring instrument is the same as the blood alcohol concentration, and rather, it cannot be ruled out that the blood alcohol concentration by the pulmonary measuring instrument cannot be ruled out that the blood alcohol concentration by the pulmonary measuring instrument is higher than the blood alcohol concentration by the pulmonary measuring instrument, when it is measured with the pulmonary air discharged from the waste.

[2] The case holding that in a case where the blood alcohol concentration measured by the pulmonary measuring instruments without standing to put the draft in water at the end of four hours after drinking end and the blood alcohol concentration measured by the pulmonary measuring instruments is 0.05%, the above evidence alone is insufficient to recognize that the Defendant driven a motor vehicle while under the influence of alcohol above 0.05%

[1] Article 308 of the Criminal Procedure Act, Articles 44(1) and 150 subparag. 1 (see current Article 148-2 subparag. 1) of the former Road Traffic Act (Amended by Act No. 9580, Apr. 1, 2009) / [2] Article 308 of the Criminal Procedure Act, Articles 44(1) and 150 subparag. 1 (see current Article 148-2 subparag. 1) of the former Road Traffic Act (Amended by Act No. 9580, Apr. 1, 2009)

[1] Supreme Court Decision 2005Do7034 decided Nov. 23, 2006 (Gong2007Sang, 85)

Defendant

Defendant

Attorney Hy Jae-sik

High Military Court Decision 2008No233 Decided February 17, 2009

The judgment below is reversed, and the case is remanded to the High Military Court.

We examine the grounds of appeal.

1. Measurement of the blood alcohol concentration by the pulmonary measuring instrument is conducted by measuring the breath alcohol concentration when the pulmonary measuring instrument absorptions in blood, thereby emitting it into the respiratory air. Thus, it cannot be readily concluded that the blood alcohol concentration is the same as the blood alcohol concentration by the breath measuring instrument without the breath in water, and rather, it cannot be ruled out that the breath alcohol concentration by the breath measuring instrument alone cannot be readily concluded that the blood alcohol concentration by the breath measuring instrument without the breath in water in cases where a considerable time has not elapsed from the final breath of alcohol, or when the breath in the mouth with the breath air discharged from the waste, such as alcohol remaining in the mouth due to the use of breath, storoth, stove, oral conditioning, etc. (see, e.g., Supreme Court Decision 200Do374, Mar. 37, 2006).

2. According to the reasoning of the lower judgment, the lower court reversed the first instance judgment that acquitted the Defendant on the ground that the result of the pulmonary measuring instrument (0.05% blood alcohol concentration) was sufficiently reliable, and found the Defendant guilty on the ground that the Defendant was sufficiently reliable, since the Defendant was found to have taken a drinking level at a 4-hour period from the final drinking time or at the time of the lapse of 4 hours from the final drinking time, and there was no possibility that alcohol would remain in blood alcohol

3. However, it is difficult to accept the above determination by the court below for the following reasons.

According to the reasoning of the judgment below and the records, the alcohol does not remain in a disguised manner, etc. only when four hours have passed since the completion of drinking, and it cannot be deemed that the alcohol does not remain in a disguised manner. If there is no alcohol in the blood, there is no alcohol content in the blood, the blood alcohol is distributed into the body due to the pulmonary measuring instrument, and most of the blood alcohol is distributed into the body, and there is a quantity of alcohol contained in blood in the body. Thus, these alcohol ingredients contained in other liquids may affect when the alcohol is measured. Considering the Defendant's age and occupation, there is a possibility that the Defendant suffers from chronic cy, there is a possibility that alcohol remaining in a crepan, etc., due to the difference between ging and scoke, etc., and there is no possibility that alcohol remains in the blood, but there is no alcohol content in the blood, and there is no possibility that the Defendant's remaining pulmonary alcohol content was measured by the pulmonary measuring instrument, and there is no possibility that the Defendant's remaining pulmonary alcohol content was measured more than 0% of alcohol.

In light of the aforementioned legal principles, the evidence submitted by the military prosecutor alone is insufficient to recognize the facts charged that the defendant driven a motor vehicle while under the influence of alcohol above 0.05%.

Therefore, the facts charged in this case shall be deemed to have no evidence of the crime, and the decision of the court below that there are other evidence of the crime is erroneous by misunderstanding the facts against the rules of evidence and thereby affecting the conclusion of the judgment. The defendant's assertion pointing

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)