[1] Requirements for determining the result of a drinking test as evidence of guilt

[2] The case affirming the judgment of the court below that the fact that the blood alcohol level measurement level came to 0.058% cannot be determined as driving a motor vehicle under the blood alcohol level above 0.05%, which is the statutory minimum standard level for drinking driving

[3] Whether a military prosecutor can file an appeal on the grounds of sentencing and competition under the interpretation of Article 442 subparagraph 7 of the Military Court Act (negative)

[4] The meaning of the crime of escape of an offender under Article 151 of the Criminal Code

[1] The result of the measurement of alcohol conducted under Article 41 (2) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) can be the basis for imposing unfavorable measures against the driver, such as revocation or suspension of the driver's license, and may be used as important evidence in investigation and trial in the future. Thus, the measurement of alcohol should be conducted in accordance with fair methods and procedures that ensure the accuracy and objectivity of the measurement results, such as taking necessary measures in advance to prevent any error due to the remaining alcohol remaining in the mouth of the driver's mouth. If the result of the measurement of alcohol is not obtained by such methods and procedures, it shall not be easily admitted as evidence of guilt.

[2] The case affirming the judgment of the court below that the defendant cannot be readily deemed to drive a motor vehicle under the status of not less than 0.05% of blood alcohol level, which is the statutory minimum standard value for drinking driving, in light of the circumstances such as the fact that the defendant did not take all measures to prevent excessive measurements due to alcohol remaining in the mouth, and that the blood alcohol level measurement level has continuously been measured by only one studio, etc.

[3] The prosecutor's interpretation of Article 442 subparagraph 7 of the Military Court Act cannot claim the grounds for appeal that the amount of punishment imposed by the court below is minor.

[4] The crime of attempted criminal under Article 151 of the Criminal Act refers to an act that makes it difficult or impossible to act as a criminal justice such as investigation and trial against a criminal, execution of a sentence, etc. by means other than concealment of the criminal, and there is no restriction on the method of such act. In addition, the crime of attempted criminal does not necessarily lead to the result of hindering the actual operation of the criminal justice.

[1] Article 41 (2) (see current Article 44 (2)) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) / [2] Article 41 (2) (see current Article 44 (2)) and Article 107-2 subparagraph 2 (see current Article 150 subparagraph 2) of the former Road Traffic Act / [3] Article 442 subparagraph 7 of the Military Court Act / [4] Article 151 of the Criminal Act

[3] Supreme Court Decision 94Do1705 delivered on August 12, 1994 (Gong1994Ha, 2321) Supreme Court Decision 2005Do1952 Delivered on September 15, 2005 (Gong2005Ha, 1665) / [4] Supreme Court Decision 93Do3080 Delivered on March 3, 1995 (Gong195Sang, 1654) Supreme Court Decision 2000Do4078 Delivered on November 24, 200 (Gong201Sang, 220)

Defendant

Defendant and one other

Attorney Park Byung-chul et al.

High Court for Armed Forces Decision 2005No74 Decided September 27, 2005

All appeals are dismissed.

1. Judgment on the grounds of appeal by the military prosecutor

A. As to the assertion of mistake of fact

Article 41(2) of the Road Traffic Act provides that a police officer may, when deemed necessary for traffic safety and prevention of danger or when there are reasonable grounds to recognize that a driver has driven a motor vehicle, etc. under the influence of alcohol, take a measurement of whether the driver is under the influence of alcohol, and the driver shall comply with such a measurement by police officers. The result of the measurement of alcohol conducted under the above provision can serve as the grounds for a disadvantageous disposition to the driver concerned, such as cancellation or suspension of the driver's license, and may be used as an important evidence in future investigation and trial. Thus, the measurement of alcohol shall be conducted in accordance with the fair method and procedure to ensure the accuracy and objectivity of the measurement results, such as taking necessary measures in advance to prevent any error due to remaining alcohol in the mouth of the driver's mouth. If the result of the measurement of alcohol is not obtained by such method and procedure, it shall not be easily admitted as evidence of guilt.

The court below acknowledged the facts as stated in its reasoning based on its adopted evidence, and found the defendant's blood alcohol measurement of this case was conducted without all measures to prevent excessive alcohol remaining in the mouth, such as having the defendant suffer from water in advance, and there was a defect in which the defendant continuously performed a drinking measurement for about five minutes by only one string, and there was a significant difference of about 0.021% between the results of the measurement more than two times, and it should have been conducted again without taking such measures. However, in light of the circumstances where the defendant's blood alcohol measurement of this case was found not guilty on the ground that there was no evidence that the defendant's blood alcohol concentration measurement of the above 2 is below the minimum level of 0.5%, the court below found the defendant not guilty on the ground that the defendant's blood alcohol concentration measurement of this case did not change the blood alcohol level of 0.5%.

In light of the above legal principles and records, the court below's finding of facts and judgment are acceptable, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds of appeal.

B. Regarding the assertion of unfair sentencing

Article 442 subparagraph 7 of the Military Court Act cannot be asserted as the ground of appeal that the judgment of the court below is less than the amount of punishment (see, e.g., Supreme Court Decisions 94Do1705, Aug. 12, 1994; 2005Do1952, Sept. 15, 2005). Thus, the ground of appeal pointing this out cannot be accepted.

2. Judgment on the Defendant’s grounds of appeal

The crime of attempted criminal under Article 151 of the Criminal Act refers to an act that makes it difficult or impossible to act as a criminal justice, such as investigation and trial against a criminal or execution of a sentence, by means other than concealment of the criminal. There is no restriction on the method of such act. In addition, the crime of attempted criminal does not necessarily lead to a result of hindering the actual operation of the criminal justice as a dangerous crime (see, e.g., Supreme Court Decisions 93Do3080, Mar. 3, 1995; 200Do4078, Nov. 24, 200).

Examining the evidence admitted by the court below in light of the records, the defendant found the facts that the non-indicted 1, who was aware of his usual mind, was discovered as a suspicion of drunk driving, had the non-indicted 2, who was the control police officer, keep him from preparing a report on detection of the driver or preventing the non-indicted 2 from taking a second alcohol test against the defendant, etc. Thus, the defendant's act constitutes an escape as referred to in the crime of capital flight. Furthermore, in light of the circumstances where the above non-indicted 1 got the above non-indicted 1 to go on a drinking control site, it is difficult to see that the defendant had no criminal intent to aid the criminal flight.

In the same purport, the court below's decision that found the defendant guilty of the crime of aiding and abetting the criminal escape is also acceptable, and there is no violation of law such as misapprehension of legal principles as to the concept of escape and the criminal intent of escape in relation to the crime of aiding and abetting the criminal escape, as alleged in the

3. Conclusion

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

Justices Son Ji-yol (Presiding Justice)