206Gudan3203 Revocation of the revocation of the driver's license

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Law Firm, Law Firm and Law Office

Attorney ZZin

The Commissioner of Busan Metropolitan City Local Police Agency

Litigation Performers;

June 27, 2007

July 11, 2007

1. The revocation of the driver's license granted to the Plaintiff on August 30, 2006 by the Defendant is revoked. 2. The litigation cost is borne by the Defendant.

The same is as the order (the other hand of September 6, 2006) (the other hand of the complaint seems to be the clerical error of August 30, 2006).

1. Details of the disposition;

A. On August 0, 2006, the Plaintiff was found to have driven a car while under the influence of alcohol on August 22:40, 2006 and was measured by a police officer on August 00, 2006, and the blood alcohol content was 0.088% as a result of the measurement conducted by a drinking measuring apparatus on August 00, 2006, the next day.

B. The Defendant calculated 0.122% of the total of 0.088% from the above measurement deposit to the measurement of 0.034% of the blood alcohol concentration from the above measurement deposit to the measurement (0.034% of the blood alcohol concentration reduction per hour; 0,008% from X driving to X driving to the measurement of 258 minutes/60%) as the Plaintiff’s blood alcohol concentration.

C. Accordingly, on August 00, 2006, the Defendant issued the instant disposition to revoke the Plaintiff’s driver’s license (Class I common account) by applying Articles 93(1)1 and 44(1) of the Road Traffic Act to the Plaintiff on August 00, 2006, and Article 91(1) [Attachment 28] of the Enforcement Rule of the Road Traffic Act.

[Ground of recognition] Facts without dispute, Gap evidence 1, 10-1, 2, Eul evidence 1-3-1, 3-3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff’s driving time of this case did not exceed 90 minutes from the final drinking time. Accordingly, when the Plaintiff’s blood alcohol concentration was risen at the time, the Defendant calculated the Plaintiff’s blood alcohol concentration as 0.122% at the time of driving of this case on the premise that the Plaintiff’s blood alcohol concentration was low in the Plaintiff’s blood alcohol content, applying the reverse calculating method based on the Badmark formula, and accordingly, issued the instant disposition based on this, it was unlawful that the instant disposition was erroneous.

(2) In light of the fact that the Plaintiff’s driver’s license is necessarily required, the instant disposition is unlawful in light of the fact that the Plaintiff’s disadvantage to the Plaintiff is too large and abused discretion.

(b) Related statutes;

As shown in the attached Form (Omission).

C. Determination

First, we examine the Plaintiff’s blood alcohol concentration at the time of driving of the instant case.

In general, blood alcohol content has come to the highest level between 30-90 minutes after the final drinking time and 0.08-0.03% (average 0.015%) per hour following the rapid increase between 30-90 minutes, and since there was no scientificly known rate of increase in time during the increase period, it can be applied if the driver’s blood alcohol concentration at the time of driving is reduced after the highest level of alcohol at the time of driving. However, if the blood alcohol concentration at the time of the operation is reduced after the highest level of alcohol, the above method may not be permitted if the blood alcohol concentration at the time of the driver’s operation is reduced, barring any special circumstances, and it can be acknowledged that the blood alcohol concentration after the final drinking time reaches the highest level of alcohol content at the time of 30-90 minutes from the final drinking time to the highest level of alcohol content, the operation by applying the most favorable time to the driver from the last drinking time limit of 90-190 minutes from the upper level of alcohol level, it can be accepted as a result of reverse 3015-1.

In full view of the purport of the arguments as to this case, the plaintiff started drinking from around 21:00 on August 20, 2006 to 22:22 on the same day. The plaintiff's final drinking time is recognized as being before and after 22:22 on the same day (the plaintiff's final drinking time is recognized as being before and after 22:22 on the same day (the plaintiff's report on detection of drinking drivers (the evidence No. 10-2, No. 3-2, No. 4-2) and the report on circumstantial statement of drinking driver (the evidence No. 4-2) prepared by the defendant, according to the following facts: the plaintiff's final drinking time is written at around 23:0 on the same day after the driving of this case; it appears that the plaintiff's final drinking time is written at around 200 on the same day; and the plaintiff's maximum drinking concentration on the same day as 20:28:40 on the same day.

Therefore, the Plaintiff was driving the instant case at the time of the lapse of 30 minutes from the final drinking time, and the Plaintiff’s blood alcohol concentration at the time of the operation was at the time of rise. Thus, the Plaintiff’s blood alcohol content at the time was 0.088% from the blood alcohol concentration deposit measured after 4 hours and 18 minutes from the above driving time.

On the basis of the foregoing, there is no evidence to support that the depositee, 0.122% of which was estimated by applying the Badmark formula, cannot be deemed as the Plaintiff’s blood alcohol concentration at the time of driving of the instant case, and otherwise, the Plaintiff’s blood alcohol concentration at the time of driving of the instant case was more than 0.1%

Therefore, the Defendant’s disposition based on the premise that the Plaintiff’s blood alcohol concentration at the time of driving of the instant case was above 0.1%, which is the criteria for revoking a driver’s license under the Road Traffic Act, is unlawful without having to examine the remainder of the Plaintiff’s assertion.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be accepted on the ground of the reasons.

Judges Exclusively