The case holding that it is difficult to readily conclude that the blood alcohol concentration calculated by the investigative agency on the basis of the Defendant's statement and statistical analysis was 0.068% higher than that of blood alcohol concentration at the time when the Defendant was driving in light of various circumstances.

The case holding that it is difficult to conclude that the defendant was in a state that the blood alcohol concentration exceeded 0.05% at the time of driving, on the grounds that the investigative agency's blood alcohol concentration calculated by applying the Madmark formula was 0.068%, but it was not clear whether the above calculated values did not reflect at all the alcohol decomposition quantity due to time and the blood alcohol concentration was risen.

Article 41(1) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) (see current Article 44(1)), Article 107-2 subparag. 1 (see current Article 150 subparag. 1), Article 307 of the Criminal Procedure Act

Defendant

Defendant

Kim Yoon-Jon

Gwangju District Court Decision 2006Ra755 Decided June 16, 2006

The judgment of the court below is reversed.

Defendant shall be punished by a fine of 6 million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

One day of detention before the pronouncement of the judgment of the court below shall be included in the period of detention in the workhouse.

The provisional payment of the amount equivalent to the above fine shall be ordered.

The summary of the grounds for appeal by the defendant is that the punishment (7 million won of fine) imposed by the court below against the defendant is too unreasonable. However, prior to the judgment on the above argument, it is examined as to the violation of the Road Traffic Act due to drinking driving among the charges of this case ex officio.

Of the facts charged in this case, the summary of the violation of the Road Traffic Act due to drinking driving is as follows: (a) around 00:13 on November 30, 2005, the Defendant driven a motor vehicle with the alcohol level of 0.068% in the blood while under the influence of alcohol level of 0.068%; (b) around 00:13 on November 30, 2005 (motor vehicle number omitted); and (c) around 800 on the part of the Defendant’s house located in the front of the Sinosno No. 220-16, the Defendant’s house located in the Ganyang-gun-gun Si

If the blood alcohol level can be measured by examining the driver's blood and pulmonary samples immediately after driving in a drunk driving, the blood alcohol level at the time of driving can be presumed as a result of calculation based on a veterinary method, using the so-called Hemark formula, unless it is the case where the blood alcohol level can be measured by examining the driver's blood and pulmonary samples immediately after driving. However, in a case where an official empirical rule, such as science, is used to find out the existence of the elements of crime, it requires strict proof of individual and specific facts constituting the premise for applying the rule of law. In a criminal trial, it is necessary to prove that the conviction in a criminal trial is true beyond a reasonable doubt. As such, if the blood alcohol level calculated by the Hemark formula does not considerably exceed the blood alcohol level permitted by the law, and if it is smaller than a level, it is necessary to determine the elements of crime more carefully in recognizing the facts of crime in accordance with the figure calculated by the above formula (see Supreme Court Decision 2005Do39405, Jul. 28, 2005).

According to the above case, the defendant stated that "it was difficult for the defendant to see the above 0-6 illness at the time of her oral statement." The defendant's 5-6 disease concentration at the time of her oral statement was 0% or more at the time of her oral statement [this case's 5-6 disease concentration at the time of her oral statement. It is hard for the defendant to see the above 8-6 disease concentration at the time of her oral statement. It is 0% or more of her oral statement, she was 5% or more of her initial blood content at the time of her oral statement. It is hard for the defendant to see that the defendant's 1-6 disease concentration at the time of her oral statement, she was 5% or more of her initial blood content at the time of her oral statement (this case's 0-60% alcohol concentration at the time of her oral statement) 】 70% alcohol content at the time of her oral statement (this case's her oral statement).

Therefore, although the violation of the Road Traffic Act due to drinking driving among the facts charged in the instant case constitutes a case where there is no proof of crime, the lower court determined otherwise by misapprehending the facts in violation of the rules of evidence, thereby adversely affecting the conclusion of the judgment, and the lower court that rendered a single sentence on the ground that this part of the facts charged and the remainder of the facts charged are in a commercial concurrent relationship or concurrent relationship is not exempt from the whole reversal.

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows through pleading.

The gist of the facts constituting the crime against the defendant recognized by this court and the summary of the evidence is as stated in the corresponding column of the judgment below, except for the deletion of the "Investigation Report (Application of FAO)" in the criminal facts column as stated in the judgment of the court below without driver's license, and therefore, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act.

1. Relevant Article of the Act and the choice of punishment for the crime;

Subparagraph 1 of Article 109, Article 40(1)(a) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005; hereinafter the same shall apply), Article 257(1)(a) of the Criminal Act, the selection of each fine for negligence.

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The summary of the charge of violation of the Road Traffic Act due to drunk driving among the charges of this case is about 800 square meters of the defendant's house located in 220-16 of the same Ri from the Do in the front of the Sinnaeng-gun, Seoyangyang-gun, Seoyangyang-gun, Seoyangyang-gun, under the influence of alcohol of 0.068% of the blood alcohol concentration, and around 00:13 on November 30, 2005, the defendant driving a motor vehicle of 220-13 of the same year (vehicle number omitted) and carried out the amount of 800 square meters of the defendant's house located in 220-16 of the same year. As seen in the above grounds for reversal, this part of the charge of this case is the time without proof of crime and thus must be acquitted under the latter part of Article 325 of the Criminal Procedure Act, or as long as the defendant is found guilty of a violation of the Road Traffic Act

On March 17, 2004, the Defendant was sentenced to imprisonment of one year and six months for the same crime as this case at the Gwangju District Court on June 30, 2005, and was released on or around July 31, 2005, and was released on or around July 31, 2005, and again committed the instant crime without being aware of the existence of a repeated crime even during the period of a repeated crime, as well as committing the instant crime. In addition, the degree of injury inflicted on the victim was heavy, as well as the circumstances leading to the instant crime and methods leading up to the instant crime, and all the conditions that form the basis for sentencing specified in the records, such as the Defendant’s criminal power, age, criminal conduct

Judges Kim Jong-chul (Presiding Judge)