The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The Defendant, after the completion of the operation of the instant case, measured the alcohol concentration in the blood by the pulmonary measurement method, was 0.10% of the numerical value when the Defendant measured the alcohol concentration in the blood. Since the Defendant 02:10, immediately before commencing the operation of the instant case, dys alcohol was dyke, and the said pulmonary measurement was conducted around 02:35, the Defendant was at the time of the said pulmonary measurement. As such, at the time of the said pulmonary measurement, the Defendant was in so-called “a

It is reasonable to view it.

Therefore, at the time of driving of the instant case, the blood alcohol concentration was lower than that at the time of the said pulmonary measurement. Thus, at the time of driving of the instant case, the Defendant’s blood alcohol concentration was more than 0.10%.

In regard to this part of the facts charged, the judgment of the court below, which was punished by applying Article 148-2 (2) 2 of the Road Traffic Act, is erroneous, which affected the conclusion of the judgment.

B. The sentence of the lower court (an amount of four million won) that is unfair in sentencing is too unreasonable.

2. Determination

A. Determination as to the assertion of mistake of fact 1) In the case of a measurement by a respiratory measuring instrument, there is a problem of accuracy and reliability of the measurement result based on the state of the measuring instrument, measuring method, degree of cooperation between the other party, etc. Therefore, barring any special circumstance, deeming that the blood test result by the blood test as a result of the measurement is an area adjacent to the blood alcohol concentration at the time of the measurement than the breath measurement by the breath measuring instrument, unless there are special circumstances that make it difficult to believe that the blood test result by artificial manipulation or the error of the related person is in the course of blood collection or examination, etc. (see, e.g., Supreme Court Decision 2013Do6285, Oct. 24, 2013). In addition, it conforms to the empirical rule to deem that the blood test result by the blood test is an area where the alcohol concentration at the time of one driving and the blood alcohol concentration at that time is measured between time and the time

Even if such circumstance alone, it is proved that the alcohol concentration at the time of actual operation exceeds the standard value of punishment.