2015Do9604 Violation of the Road Traffic Act (Drinking)

A person shall be appointed.

Prosecutor

Suwon District Court Decision 2014Do1410 Decided June 3, 2015

March 24, 2016

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

The grounds of appeal are examined.

1. The measurement conducted to determine whether a police officer is under the influence of alcohol pursuant to Article 44(2) of the Road Traffic Act refers to a measurement conducted by a respiratory measuring instrument, i.e., a method of objectively converting the degree of taking the alcohol from the respiratory and objectively converting the degree of taking the alcohol therefrom. Meanwhile, under Article 44(3) of the Road Traffic Act, a police officer’s demand for a measurement by a means of collecting blood from a police officer is limited to a considerable distance from the time when the police officer seeks confirmation upon presenting the result of the respiratory measurement to a driver. Therefore, a police officer’s demand for a measurement by a means of collecting blood from the above point of time after a considerable amount of time from the above point of time without justifiable cause cannot be deemed a justifiable demand. In this case, even if a police officer did not perform a measurement by a means of blood collection, the fact of driving alcohol alone can be proven as a result of a measurement by a respiratory measuring instrument (see Supreme Court Decision 201Do7121, Mar. 15, 2002).

2. Based on its stated reasoning, the lower court reversed the first instance judgment convicting the instant facts charged, and sentenced the Defendant not guilty, on the grounds that it is difficult to deem that the Defendant driven a motor vehicle while under the influence of alcohol above 0.05% of blood alcohol level to have been proven beyond a reasonable doubt.

3. However, such determination by the lower court is difficult to accept for the following reasons. According to the evidence duly adopted and examined by the lower court and the first instance court, the following facts are revealed.

① On March 5, 2014: around 32, 2014, the Defendant was subject to a pulmonary measurement by a police officer belonging to the Gyeonggi Military Police Station, and as a result, the Defendant’s blood alcohol concentration was measured at 0.142%.

② At the time of the so-called pulmonary testing method, the Defendant did not use the so-called pulmonary agents, and complied with the so-called breath test after the climatic agents were in charge.

③ The police officer who controlled the Defendant, prepared a report on the circumstances of the drinking driver and a report on the results of the drinking driving control to the effect that the Defendant was able to walk with an inaccurate and little string, and that the blood was red, respectively, and the Defendant also confirmed the results of the measurement and the contents of the above drinking driver’s circumstantial report and signed it directly.

(4) In addition, the defendant was notified by the control police officer that blood collection can be conducted in case the result of measurement is unfair, but did not demand it.

⑤ According to Article 40 of the National Police Agency Traffic Control Guidelines, a drinking measuring instrument must undergo an inspection and correction of the instrument within four months for each local government office to maintain accuracy in the results of a drinking test. The instant drinking measuring instrument was corrected on December 2, 2013, which was about three months before the date of the above drinking test.

6. The Defendant: (a) performed a drinking test as above; and (b) performed a driving test at the Gyeonggi M&M, and thereafter, (c) demanded a drinking test by blood gathering methods; (d) but (e) was refused by the police officer in charge.

7. On March 5, 2014, at around 10: (a) around 04: (b) around 0: (c) around 0: (d) around 0: (e) around 0: (e) around 0: (e) around 3 hours and 40 minutes from the time when the blood sampling was performed; and (e) around 0.01% of the blood sampling result.

1. On the other hand, in the case of measuring blood alcohol level at the time of the collection of a knivers’ house, the Kansan Hospital at the Nancheon University received a receipt stating the person’s personal information from the doctor in charge, consulted with the doctor in charge, and collected blood in the nurse’s room, and measured the blood alcohol level at the examination room. When receiving a receipt from the person subject to the examination, the examination did not verify whether the person subject to the examination is the person subject to the examination.

(2) Examining these facts in light of the legal principles as seen earlier, it is difficult to view that the Defendant’s commencement of the request for blood collection only after the lapse of two hours from the time when the pulmonary test was conducted by the breathr, and the Defendant did not raise any objection to the result of the breath test. Moreover, the possibility that the Defendant’s blood collection test conducted by the breathr at will, in the course of the test, could not be ruled out that there was an artificial manipulation or an interference by the person concerned during the process of the breath test, such as the breathr’

On the other hand, the breath measurement of this case against the defendant, which was conducted by the breath test method, was conducted in accordance with the lawful procedure, and there is no circumstance to deem the result of the

Ultimately, according to the result of the breath measurement against the Defendant, it is reasonable to view that the Defendant was driving a motor vehicle under the influence of alcohol at least 0.05% of the blood alcohol concentration.

(3) Nevertheless, the lower court acquitted the Defendant on the ground that it was difficult to deem that the blood alcohol level of the Defendant was above 0.05% at the time of driving solely based on the grounds stated in its reasoning. Therefore, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the procedures for the measurement of drinking

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon

Justices Kim Jae-tae

Justices Jo Hee-de

Justices Park Sang-ok