[1] In a case where a driver of a motor vehicle, etc. fails to comply with the "measurement of drinking by smoking" due to a physical disorder, etc., whether a crime of non-compliance with the measurement of drinking is established (negative)

[2] In a case where a driver who is unable to comply with the breath test due to a physical disorder, etc. refuses or makes it impossible to comply with the breath test, whether such a driver may be deemed to refuse the breath test (negative)

[3] The case affirming the judgment below that found the defendant not guilty on the ground that he did not comply with the drinking test on the ground that he did not comply with the drinking test on the facts charged of violation of the former Road Traffic Act, on the ground that he did not comply with the request of a police officer for a drinking test, the pulmonary activity level of the defendant is about 26.9% in normal conditions and about 3.5% in the first first second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second second, and the pulmonary activity of the defendant is about 0.

[1] Articles 44(2) and 150 subparag. 2 (see current Article 148-2 subparag. 2) of the former Road Traffic Act (Amended by Act No. 9580, Apr. 1, 2009) / [2] Articles 44(2) and (3), and 150 subparag. 2 (see current Article 148-2 subparag. 2) of the former Road Traffic Act (Amended by Act No. 9580, Apr. 1, 2009) / [3] Articles 44(2) and (3), and 150 subparag. 2 (see current Article 148-2 subparag. 2) of the former Road Traffic Act (Amended by Act No. 9580, Apr. 1, 2009)

[1] Supreme Court Decision 99Do5210 delivered on April 21, 200 (Gong2000Sang, 1336) Supreme Court Decision 2002Do4220 Delivered on October 25, 2002 (Gong2002Ha, 2931) Supreme Court Decision 2005Do7125 Delivered on January 13, 2006 (Gong2006Sang, 288)

Defendant

Prosecutor

Attorney Lee Young-young

Daejeon District Court Decision 2009No2865 Decided February 10, 2010

The appeal is dismissed.

The grounds of appeal are examined.

According to Article 44(2) of the former Road Traffic Act (amended by Act No. 9580 of Apr. 1, 2009; hereinafter the same), in a case where there are reasonable grounds to recognize that a driver has driven a motor vehicle under the influence of alcohol, a police officer is obligated to comply with such a measurement, but a police officer is not obliged to take such a measurement even when the driver's body is in a situation where it is impossible or extremely difficult to take a pulmonary measuring instrument due to reasons such as a driver's physical condition. In such a case, even if a police officer requested a pulmonary measuring instrument to take a breath test and failed to put the breath level to the degree that the breath level of the breath level of the breath level of the breath level of the breath level of the breath level of the breath level of the breath level of the breath level of the breath level of the breath level of the vehicle.

In addition, Article 150 subparagraph 2 of the former Road Traffic Act provides that "any person who has considerable reason to recognize that he is under the influence of alcohol and fails to comply with a measurement by a police officer under Article 44 (2) shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding five million won." Thus, a police officer's measurement under Article 44 (2) of the same Act refers only to a measurement conducted by a pulmonary examination under Article 44 (2) of the same Act, and it is clear in the text of the same Act that such measurement cannot be deemed as including a measurement conducted by blood collection under Article 44 (3) of the same Act. Therefore, even if a driver who is unable to comply with a pulmonary examination due to a reason such as physical disorder refuses or makes it impossible to comply with a measurement conducted by a pulmonary examination

The court below affirmed the first instance judgment that found the Defendant guilty of the charges of this case on the ground that, in light of the fact that the Defendant was registered as the disabled in the third degree of physical disability due to spinal disability with approximately 26.9%, the Defendant’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s f.

In light of the above legal principles and records, we affirm the judgment of the court below as just, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the crime of non-compliance with the measurement of drinking alcohol, as otherwise alleged in the ground 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 Shin Young-chul (Presiding Justice)