The prosecutor's appeal is dismissed.

1. According to the investigation report on H prepared by the police officer on the summary of the grounds for appeal, the result of the examination of the defendant's false statement, the confession statement made by the defendant in an investigative agency, etc., it can be sufficiently recognized that the defendant driven at the time of the instant case, and it is not so.

Even if the actual driving is required, it cannot be interpreted that the defendant is the subject of the crime of refusing to measure drinking, and when considering the situation at the time of control, the defendant was driving drinking.

Since there was a reasonable reason to determine a person, the defendant has a duty to respond to a request for measurement of drinking by police officers.

Therefore, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. The Defendant, at around 22:00 on February 6, 2015, was under the influence of alcohol, while driving a e-car on the front side of the road located in Busan Dong-gu, and driving a e-car more than 15 meters in front and rear from the front side of the road in Busan Dong-gu, and driving a e-car in the front and rear side.

Despite the fact that there is a reasonable reason to designate a person, the Fa of the Fa of the Busan East Police Station did not comply with the request for the measurement of drinking between approximately 30 minutes by the assistant G belonging to the Busan East Police Station, without any justifiable reason.

B. The lower court determined that the automobile was driven under the influence of alcohol in violation of Article 44(1) of the Road Traffic Act.

Any person who is required to comply with a request by a police officer for a measurement of drinking on the ground that there is a reasonable ground to determine a person is the "motor vehicle driver" of the relevant motor vehicle, and when he is not the driver of the relevant motor vehicle, he/she is in violation of the provisions of prohibition of driving under

There is no room to see that it does not constitute a case where a person fails to comply with the measurement of drinking under Article 2 (2) of the same Act (Supreme Court Decision 2006Do7074 Decided January 12, 2007; Supreme Court Decision 2005Do859 Decided October 11, 2007).