[1] The point of attention to the calculation of the blood alcohol concentration by using the Hemmark formula

[2] The case holding that it cannot be readily concluded that the blood alcohol concentration exceeds the punishment standard level on the ground that the defendant's blood alcohol level is merely a sufficient evidence about drinking volume, drinking time, and body weight of the defendant, which is a prerequisite for the above mark formula, and the defendant's blood alcohol level is not sufficient to apply the above mark coefficient favorable to the defendant

[1] In a case where an empirical rule, such as scientific public awareness, is used to find out the existence of a crime element, it is necessary to provide strict proof of individual and specific facts, which are the premise for the application of the rule of law. In the case of the Ba mark formula, the amount of alcohol taken in as data for the application thereof, drinking time, body weight, etc. As such, strict proof of such premise fact is required. In a case where the blood alcohol concentration calculated by the Bamark formula does not considerably exceed the blood alcohol concentration permitted by the law, and it is extremely minor, the determination should be made more carefully when recognizing the constituent elements of the crime according to the figures calculated by the above formula.

[2] The case holding that it cannot be readily concluded that the blood alcohol concentration exceeds the punishment standard level on the ground that the defendant's drinking volume, drinking time, and body weight of the defendant, which is a prerequisite for the above mark formula, lack of evidence as to the drinking volume, drinking time, and body weight of the defendant, and the application of the above mark coefficient favorable to the defendant is not sufficient.

[1] Article 44 and Article 150 subparagraph 1 of the Road Traffic Act, Article 307 of the Criminal Procedure Act / [2] Article 44 and Article 150 subparagraph 1 of the Road Traffic Act, Article 307 of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do1929 Decided July 13, 2001 (Gong2001Ha, 1904) Supreme Court Decision 2002Do6762 Decided April 25, 2003 (Gong2003Sang, 1383), Supreme Court Decision 2004Do408 Decided September 24, 2004, Supreme Court Decision 2005Do6368 Decided November 23, 2006, Supreme Court Decision 2008Do5531 Decided August 21, 2008 (Gong2008Ha, 1324)

Defendant

Defendant

Overheadings

Attorney Jeong-young

Suwon District Court Decision 2008Gohap242 decided Oct. 9, 2008

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The defendant was engaged in drinking together with his fee, and there is no other fact of drinking.

2. Summary of the facts charged

On March 21, 2007, the Defendant driven (vehicle No. 1 omitted) 0.063% of blood alcohol concentration at around 15:35, and driven a 30km away from the street in front of the Chinese house to the Defendant’s residence, and drive a 00km of approximately 10 km from the Sinsan-si New-si, Sinsan-si.

3. The judgment of the court below

The court below found the defendant guilty on the grounds of the defendant's partial statement in the police interrogation protocol (the purport that driving at the time of this case is true), the witness non-indicted 1, 2, 3, and 4's statement, each copy of each statement prepared by non-indicted 5, and 6, the main driver detection report, the investigation report (demark official form), the investigation report (demark official form), the copy of the order book, etc.

4. The judgment of this Court

A. In order to find out the existence of the elements of crime, individual and specific facts that constitute the premise for the application of the rule of law should be strictly proved. In the case of the Bamark formula, the amount of alcohol taken in as data for the application of the rule of law, drinking time, body weight, etc. Therefore, strict proof of such premise facts is required (see, e.g., Supreme Court Decision 2008Do5531, Aug. 21, 2008). In the case where the blood alcohol concentration calculated by the Bamark formula does not considerably exceed the blood alcohol concentration permitted by the law, and it is extremely minor, the determination should be made more carefully in recognizing the elements of crime according to the figures calculated by the above formula (see, e.g., Supreme Court Decision 2004Do4408, Sept. 24, 2004).

B. According to the records, the defendant's three persons of friendship and the date, time, and place of the facts charged are recognized as having 2 soldiers suffering from her own interest.

Furthermore, in order to calculate the blood alcohol concentration by the Badmark, there is a need for proof of the Defendant’s drinking volume, drinking time, and body body. Thus, the investigation report prepared by the judicial police officer Nonindicted 4 and Nonindicted 4’s statement that conforms to the drinking volume was made by Nonindicted 4, but the investigation report of the court below was written in the evidence list that the Defendant consented to the evidence, but it appears by mistake in light of the fact that the Defendant denies drinking from the investigative agency to this court, and even if the admissibility is acknowledged, it is difficult to recognize probative value in light of the fact that the Defendant’s statement was made without confirmation such as the Defendant’s signature and seal affixed. In addition, the testimony by Nonindicted 4 of the court below is admissible as evidence only when it is proved that the testimony was made in a particularly reliable state as an investigator who prepared the above investigation report and investigated the instant case, and it is difficult to recognize that the Defendant made the suspect’s statement to the effect of drinking alcohol as evidence, while it was extremely difficult to recognize that the Defendant made the suspect’s statement to this effect.

(2) Even if the Defendant breath alcohol level differs depending on the period of alcohol and the body of the Defendant’s body, so it is necessary to provide evidence. In addition, the Defendant stated that the Defendant had driven 20 to 30 minutes after one hour at the place of the charge. However, there is no evidence as to the period of breath alcohol level, depending on whether the Defendant 2 remains in the early stage of drinking, or whether the Defendant breath before driving. There is no evidence as to the period of breath alcohol level. There is also no evidence as to the period of breath alcohol level depending on whether the Defendant 2 remains in the early stage of drinking, or whether the Defendant breath before driving. In addition, the protocol of examination on the Defendant’s body prepared by a judicial police officer as to the body of the Defendant included the Defendant’s statement “80 kilograms” in the protocol of examination on the Defendant’s body, but it can be said that the body of the Defendant at the time of committing the instant crime.

③ Finally, according to the investigation report prepared by the judicial police officer, in calculating the blood alcohol content of the defendant, the blood alcohol content is merely 0.051% [=(0.56% x 0.7894%)/10] when calculating the blood alcohol content of the defendant, it is difficult to conclude that the defendant violated the above law at the time. The defendant violated the above law.

Therefore, the judgment of the court below which found the defendant guilty should be pronounced not guilty because there is no evidence that the defendant had driven under the Road Traffic Act, but there is an error of law by misunderstanding the facts. Thus, the defendant's assertion of this is justified.

5. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is as indicated in Paragraph 2, and the facts charged of this case constitutes a case where there is no proof of crime as seen earlier, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act. It is so decided as per Disposition

Judges Cho Han-chul (Presiding Judge)