2017Do1442 Violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, and Violation of the Road Traffic Act (driving)

A

Prosecutor

Chuncheon District Court Decision 2016No812 Decided January 12, 2017

September 21, 2017

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

The grounds of appeal are examined.

1. (a) Article 44 (2) of the Road Traffic Act shall apply to police officers in order to ensure the safety of traffic and prevent danger;

If it is deemed necessary or it is deemed necessary to drive a motor vehicle under the influence of alcohol in violation of paragraph (1).

In a case where there is a reasonable ground to recognize that a driver is under the influence of alcohol, the respiratory examination of whether the driver is under the influence

A measurement may be conducted. In such cases, the driver shall comply with the measurement by a police officer."

in paragraph 3, and in respect of a driver who is dissatisfied with the result of the measurement under paragraph 2, that person.

"Re-measurements may be conducted by means of blood sampling, etc. with the driver's consent."

section 1.

For a driver suspected of drunk driving in the course of investigating the drinking driving, the Road Traffic Act

Where the pulmon test under Article 44 (2) has been conducted, a scientific and neutral person accordingly.

As long as the pulmonary measurement is derived, a driver's objection has become unnecessary to re-drawing.

Unless otherwise, it is prohibited in principle to take a re-measurement of alcohol (Supreme Court Decision 7 July 2015).

9. In addition, in light of the provisions of the Road Traffic Act as above, etc.

In addition, there are special circumstances to police officers whose blood alcohol concentration is measured according to the pulmonary method.

the blood alcohol level can be measured again through the method of blood collection.

No driver shall be deemed to have an obligation to notify the driver.

(b) experience as to whether a driver has driven while drinking;

It is merely a method of collecting evidence in accordance with the rules of law (Supreme Court Decision 2004Do8387 Decided February 25, 2005).

I. Accordingly, the police officer’s existence of the Medmark formula and further blood eggs by the pulmonary measurement;

Even if the Corol concentration falls short of the standard value of punishment for drunk driving, epidemic acid in accordance with the formula of the Madmark;

When calculating the blood alcohol level at the time of driving by means of the method, the result shall be punished for drinking driving.

(1) The driver has a duty to notify the driver of the fact that the driver is likely to be in excess of the equivalent value.

It is difficult to see that it is.

2. According to the evidence duly admitted by the court below, the following facts are revealed.

(1) On October 8, 2015, the Defendant divided a small-scale two soldiers into two groups, and moves to the following Mace:00.

(1) On October 9, 2015, a person who dysnizes dys dys, and drives a passenger car on October 9, 2015, with the following seal attached thereto.

C. The instant traffic accident caused the instant accident.

② On October 9, 2015, after the occurrence of the instant traffic accident, the Defendant’s respiratory test around 05:10

As a result, the defendant's blood alcohol concentration was measured with 0.046%.

Therefore, police officers returned to the defendant without any particular measure.

(3) Police officers shall take a pulmonary test using a reverse oxygen method in the dicmark formula.

Based on the blood alcohol concentration level of the defendant at the time of the occurrence of the instant traffic accident, the blood alcohol concentration of the defendant

B calculated at 0.052% (0.047% + 0.008% x 45 minutes/60%). Based on this, the prosecutor conducted this inspection.

Public prosecution was instituted.

Examining these facts in light of the legal principles as seen earlier, the Defendant’s pulmonary measurement in this case

There is no evidence to prove that there was a request for re-measurement by means of blood collection, etc.

C. The blood alcohol concentration by the pulmonary measurement is greater than the actual blood alcohol concentration of the defendant.

There is no objective circumstance to acknowledge that there has been high level of pulmonary measures by a police officer. Therefore, after pulmonary measures by a police officer

by means of blood sampling, the blood alcohol concentration may be measured again to the accused, or the above may be measured by means of blood sampling

Blood at the time of operation by the existence of the dmark formula and by the dmark formula

When calculating alcohol concentration, there is a possibility that the result may exceed the standard numerical value of punishment for drunk driving.

not notifying the driver of the purport that the driver did not notify the driver, by means of the pulmonary measurement of the defendant.

The probative value of blood alcohol concentration measurement result (0.046%) cannot be denied.

3. Nevertheless, the lower court: a police officer who measured the blood alcohol level according to the pulmonary measuring method;

The result of the blood alcohol concentration at the later time by applying the Badmark formula to the defendant

by informing that it can be calculated as excessive and that it is possible to measure blood consumption by blood gathering.

the defendant's return to the court without notifying this fact.

As a result, the defendant requires a measurement of drinking by blood gathering methods and requires a measurement of respiratory level by blood collecting methods.

For reasons of failure to have an opportunity to dispute the blood alcohol concentration, etc., the pulmonary measurement of the instant case

The result of blood alcohol concentration measurement (0.046%) judged that its probative value cannot be recognized.

Such judgment of the court below shall be proved by Article 44 (2) and (3) of the Road Traffic Act and by blood alcohol concentration.

In so determining, the lower court erred by misapprehending the legal principles on the grounds of appeal, thereby affecting the conclusion of the judgment.

The ground of appeal is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion.

We conclude that it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-deok

Justices Kim Jae-han

The chief Justice Park Sang-ok

Justices Park Il-san