2013No3554 Violation of the Road Traffic Act (Drinking)

Kim 00 (7 - 1), Company Board

Seo-gu Incheon

Reference domicile Kim

Defendant

this title (prosecutions) and Kim Jong-Un (Public Trial)

Attorneys Lee Young-young (Korean National Assembly Line)

Incheon District Court Decision 2013 High Court Decision 2695 Decided November 29, 2013

March 28, 2014

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of the facts charged in this case

around 23, 2013: around 40, the Defendant driven a 68-000 Aburged car under the influence of alcohol content of 0.191% while under the influence of alcohol, from the road front of 487-2 (Madong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong 722.

2. Summary of grounds for appeal;

A. Error of mistake

Since the collection of blood from the Defendant’s blood did not go through the warrant, and the process of collecting blood cannot be trusted, among the facts charged in the instant case, the Defendant’s blood alcohol concentration cannot be recognized.

B. Unreasonable sentencing

The sentence of the court below is too unreasonable because it is too unreasonable.

3. As to the assertion of mistake of fact

A. Facts of recognition

Comprehensively taking account of the evidence duly adopted and examined by the court below, the following facts may be recognized:

① After drinking alcohol at night on May 27, 2013, the Defendant driven a motor vehicle of 4 km from 50-2, 4 km in the Seo-gu Incheon, Seo-gu, Incheon, Seo-gu 487, 50-2 (Ma-dong) to 4 km in the same day, and passed at 23:40 on the same day, and 722 km in the same Gu non-ro-dong on the same day.

(2) The defendant was unable to talk with him on the scene of the accident, and immediately after the accident, or to measure the smoking of drinking or smoking, because he was not able to do so at the autopsy hospital.

③ On May 28, 2013, at around 00: 45, the police officer belonging to the Incheon Western Police Station demanded to collect the Defendant’s blood by driving a blood collection tool and obtaining a subsequent warrant from the nurse 00 of the above hospital. At 100, the police officer collected and stored the Defendant’s blood using the above blood collection tool (hereinafter “the instant blood”).

④ On May 29, 2013, on May 28, 2013, the judge in charge issued a warrant of search and seizure inspection (hereinafter “instant warrant”) that seizes the Defendant’s blood point (which is limited to blood remaining after being used for treatment, first of all) that is being used for treatment, and is in custody for treatment at around 45.

⑤ On May 30, 2013, the police officer belonging to the above police station confiscated the blood of this case with the instant warrant at the above hospital 00

④ On May 30, 2013, the chief of the Incheon Western Police Station requested the head of the National Institute of Scientific Investigation to appraise the blood alcohol content of the instant blood, and the head of the National Institute of Scientific Investigation and Research assessed on June 3, 2013 that the blood alcohol content of the instant blood was 0.1%.

7. The above hospital related persons collected blood in addition to the blood of this case for treatment, and disposed of the remaining blood.

B. Determination

According to Article 308-2 of the Criminal Procedure Act, evidence collected in breach of due process shall not be admitted as evidence. According to Articles 215 and 216(3) of the same Act, a prosecutor may seize, search, or inspect evidence according to a warrant issued by a judge of the competent district court, upon request by a prosecutor, only when it is deemed necessary to investigate a crime and only when it is deemed that the suspect has a relation to the relevant case. When necessary to investigate a crime, a judicial police officer has a circumstance to suspect that the suspect has committed a crime. Only if recognized, seizure, search, or verification may be conducted with a warrant issued by a judge of the competent district court upon request by the public prosecutor upon request by the public prosecutor. Where it is impossible to obtain a warrant issued by a judge of the competent court because of urgency at the place of the crime during or immediately after the crime, seizure, search, or verification may be conducted without delay, but in such cases, a post facto warrant shall be obtained without delay.

The blood of this case was confiscated under the instant warrant even though it is obvious that it is not subject to the seizure of the instant warrant, and there was no ex post facto warrant issued thereafter. Accordingly, the blood amount of this case cannot be admitted as evidence as evidence, not evidence of evidence obtained in compliance with lawful procedures, and both of the blood alcohol concentration appraisal report, actual condition survey report, ju-wing driver status report, investigation report (suspect, etc.) and investigation report (defluence), and secondary evidence based on the blood amount of this case cannot be admitted as evidence (see Supreme Court Decision 2007Do3061, Nov. 15, 2007).

If so, there is no evidence that the defendant's blood alcohol concentration can be recognized, so the defendant's misunderstanding of facts is reasonable.

4. Conclusion

As such, the defendant's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the argument of unfair sentencing, and the judgment is again rendered as follows after pleading.

The summary of the facts charged in this case is as stated in Paragraph (1). This constitutes a case where there is no proof of a crime as stated in Paragraph (3) and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Jeong-ho

Judges Lee Woo-soo

Judges South-North;