Whether a police officer may request a test by a drinking-free measuring instrument for the purpose of ascertaining whether a driver's drinking or the degree of drinking alcohol is permissible (affirmative) / The meaning and criteria for determining "cases of failing to comply with a police officer's measurement" as referred to in Article 148-2 (1) 2 of the former Road Traffic Act / Cases where a police officer's refusal to conduct a test by a drinking-free measuring instrument clearly indicates that there is no intention to respond to a test by a drinking-free measuring instrument objectively.

A measurement conducted by a police officer to ascertain whether a driver under Article 44(2) of the former Road Traffic Act (amended by Act No. 12917, Dec. 30, 2014; hereinafter “Road Traffic Act”) is under the influence of alcohol, shall be understood as a measurement conducted by a drinking measuring instrument, i.e., a measurement conducted by a police officer to objectively convert the degree of the drinking from the drinking, to the degree of the drinking. In addition, when a police officer conducts a measurement as to whether a driver under the influence of alcohol or the degree of the drinking, a police officer has a certain level of discretion in measuring methods and frequency of measurement within a reasonable extent. Accordingly, a police officer may request a driver to present a drinking measuring instrument in front to check whether a driver under the influence of alcohol or the degree of the drinking. As such, a police officer may request a test conducted by a drinking measuring instrument, which is closely related to a measurement by a drinking measuring instrument, as a prior procedure, for

Meanwhile, “cases of failing to comply with the measurement of a police officer” under Article 148-2(1)2 of the Road Traffic Act refers to cases where it is objectively evident that a driver who has a reasonable ground to believe that he/she is under the influence of alcohol in light of the overall progress of the case has no intent to respond to the measurement of alcohol. Whether objectively apparent intention to refuse the measurement of alcohol including the driver’s words, attitudes, etc. at the time of the request for the measurement of alcohol, the reason why the police officer requested the measurement of alcohol, the method and degree of the request for measurement, the method and degree of the request for measurement, the preparation of relevant documents following the non-compliance with the measurement, the reasons for the refusal of the measurement of alcohol by the driver, and the time of refusal, etc. shall be carefully determined after

In addition, in a case where a police officer requests a driver to take a test by a drinking-free measuring instrument which is conducted at the preceding stage of the measurement by the drinking-free measuring instrument in order to confirm whether he/she consumes, if the test results are expected to be conducted by the drinking-free measuring instrument, and if it can be deemed that the driver refuses the test by the drinking-free machine even though he/she was aware of such circumstances, it can be deemed that the act of refusing the test by the drinking-free measuring instrument clearly expresses that there is no intention to respond to the measurement by the drinking

Articles 44(2) and 148-2(1)2 of the former Road Traffic Act (Amended by Act No. 12917, Dec. 30, 2014)

Supreme Court Decision 92Do220 Decided April 28, 1992 (Gong1992, 1782) Supreme Court Decision 99Do5377 Decided March 10, 200, Supreme Court Decision 2008Do2170 Decided May 8, 2008, Supreme Court Decision 2013Do8481 Decided December 24, 2015 (Gong2016Sang, 262)

Defendant

Prosecutor

Daegu District Court Decision 2015No3674 decided September 22, 2016

The appeal is dismissed.

The grounds of appeal are examined.

1. In addition, a measurement conducted by a police officer to ascertain whether a driver under Article 44(2) of the former Road Traffic Act (amended by Act No. 12917, Dec. 30, 2014; hereinafter “Road Traffic Act”) is under the influence of alcohol, shall be understood as a measurement conducted by means of a drinking measuring instrument, i.e., an objective conversion of the degree of drinking from a driver after taking a pulmonary test (see, e.g., Supreme Court Decisions 99Do5377, Mar. 10, 200; 2008Do2170, May 8, 2008). In addition, it is reasonable to deem that a police officer has a certain level of discretion on the method or frequency of measurement within the reasonable necessary limit when measuring whether a driver under the influence of alcohol is under the influence of alcohol or the degree of drinking (see, e.g., Supreme Court Decision 92Do220, Apr. 28, 192).

Meanwhile, “cases of failing to comply with the measurement of a police officer” under Article 148-2(1)2 of the Road Traffic Act refers to cases where it is objectively evident that a driver who has a reasonable ground to believe that he/she is under the influence of alcohol in light of the overall progress of the case has no intent to respond to the measurement of alcohol. Whether objectively apparent intention to refuse the measurement of alcohol including the driver’s speech, attitude, etc. at the time of the request for the measurement of alcohol, the reason why the police officer demanded the measurement of alcohol, the method and degree of the request for the measurement, the method and degree of the request for the measurement, the preparation of relevant documents following the non-compliance with the measurement such as the report on detection of a driver under the influence of alcohol, the reasons why the driver refuses the measurement of alcohol, and the time of refusal, etc. must be carefully determined after comprehensive consideration (see Supreme Court Decision 2013Do8481, Dec. 24,

In addition, in a case where a police officer requests a driver to take a test by a drinking-free measuring instrument which is conducted at the preceding stage of the measurement by the drinking-free measuring instrument in order to confirm whether he/she consumes, if the test results are expected to be conducted by the drinking-free measuring instrument, and if it can be deemed that the driver refuses the test by the drinking-free machine even though he/she was aware of such circumstances, it can be deemed that the act of refusing the test by the drinking-free measuring instrument clearly expresses that there is no intention to respond to the measurement by the drinking

2. The part of the court below's decision that the police officer did not comply with the police officer's request for measurement only on the basis of whether the police officer requested a driver's alcohol measuring instrument in the presence of the driver is inappropriate for misunderstanding the legal principles on the measurement of drinking alcohol by police officers as provided in Article 44 (2)

However, in full view of the following circumstances acknowledged by the evidence duly adopted by the court below, namely, at the time when a police officer demanded a test for drinking alcohol, the Defendant had already finished driving more than two hours, and the Defendant was seated in front of the convenience store for not less than 40 minutes after having arrived at the site of this case by driving his own vehicle, and the Defendant was suffering from the disease above, and thus, there was no possibility that the Defendant would drink only at the site of this case after driving. In full view of the following circumstances, it is insufficient to deem that there was a considerable reason to acknowledge that the Defendant had driven a motor vehicle under the influence of alcohol.

Ultimately, the lower court’s conclusion that acquitted the Defendant of the violation of the Road Traffic Act among the facts charged in the instant case is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the measurement of alcohol by police officers and the requirements for the arrest of flagrant offenders under Article 4

On the other hand, the prosecutor filed an appeal against the guilty portion of the judgment below, but there is no indication of the grounds for appeal in the petition of appeal and no statement of the grounds for appeal is found in the appellate brief.

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

Justices Kwon Soon-il (Presiding Justice)