The defendant's appeal is dismissed.

1. The summary of the grounds for appeal (misunderstanding of facts) of the Defendant’s final drinking time was around 01:00 on May 12, 2015, and around 01:05 on the same day, the Defendant’s final drinking time was 02:15 on the same day, starting driving at around 02:15 on the same day due to diving in the atmosphere signal signal condition while driving. The result of the pulmonary measurement at around 02:43 was 0.107% of alcohol in blood, and 0.159% of alcohol in blood. Considering the aforementioned final drinking time, driving time, and each measuring time, the Defendant’s collection of blood to the Defendant was made at the time of increase in alcohol content in blood while driving, and thus, it was at the time of increase in alcohol content in blood while driving.

Therefore, it cannot be readily concluded that the Defendant’s blood alcohol concentration at the time of driving is 0.162%.

2. Determination

(a) Where the distance between the driving point and the blood alcohol concentration is measured, and at that time, it appears that the alcohol concentration in the blood is increased;

Even if such circumstance alone makes it impossible to prove that the alcohol concentration at the time of actual operation exceeds the standard value of punishment.

shall not be deemed to exist.

In such a case, the punishment level was higher than the standard level at the time of driving.

Whether it can be seen or not shall be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances acknowledged by evidence, such as the distance between driving and measurement, the difference between the value of alcohol concentration and the standard value of punishment in measured blood, the duration and volume of drinking continued, the driver’s behavior level at the time of crackdown and measurement, and the situation of the accident if there is a traffic accident, etc. (see, e.g., Supreme Court Decision 2014Do3360, Jun. 12, 2014). (b) The following facts and circumstances are recognized according to the evidence duly adopted and duly examined by the lower court and the appellate court.

① According to the statement of the state of the driver’s circumstances prepared at the time of control, the date and time when the accused was discovered is “:02:15 on May 12, 2015,” and the date and time of measurement by the respiratory tester is “the date and time of measurement by the respiratory tester.”