2010No811 Violation of the Road Traffic Act (Drinking)

MaximumO (57-years, male), Company Board

Housing Sog-gu, Housing Sog-gu

Mapo-gu Seoul basic domicile

Defendant

Does00

Suwon District Court Decision 2009 High Court Decision 4069 Decided February 11, 2010

April 29, 2010

The judgment of the court below is reversed.

Defendant, not guilty,

1. Summary of the grounds for appeal;

The report on detection of drinking drivers and the report on the circumstances of drinking drivers, which correspond to the facts charged in this case, are made by B rather than the originator A, and the blood alcohol concentration by the respiratory measuring apparatus around May 2009, 24, 22:38, which is the day of the crime in this case, has reached 050%, but this is not a result of measurement conducted by the respiratory measuring apparatus as water, and thus it is not reliable. Despite this, the court below found the defendant guilty of the facts charged in this case, there is an error of law by misunderstanding the facts and affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

At around 209, May 24, 22: Around 26, the Defendant driven an OO vehicle of approximately 100 meters at a distance of 100 meters from the oel in front of the oel located in the Dong-gu, Young-si to the bottom of the same Dong-dong Highway (hereinafter referred to as the “OO vehicle”) under the influence of alcohol content of 0.0%.

B. The lower court’s determination:

As to this, the lower court rendered a conviction of all the facts charged of this case by integrating the evidence in its holding.

C. Judgment of the court below

Measurement of blood alcohol concentration by pulmonary measuring instruments is to be measured through the pulmonary measuring instruments and through which the alcohol contained in blood flows through the pulmonary measuring instruments. It is difficult to readily conclude that the pulmonary concentration is above that of blood alcohol contained in the pulmonary measuring instruments without a considerable time from the final date of drinking, or due to the use of cream, pyroto, oral conditioning, or oral conditioning, and if the blood contained in the upper part is measured together with the pulmonary air discharged, it can be seen that the pulmonary alcohol concentration is higher than that of the actual blood alcohol; on the other hand, if the pulmonary measuring instruments are more than that of the blood alcohol contained in the pulmonary measuring instruments without using the pulmonary measuring instruments, it can be ruled out that the pulmonary concentration is lower than that of the blood alcohol contained in the pulmonary measuring instruments; on the other hand, if the pulmonary weight concentration in the pulmonary measuring instruments increases beyond that of the blood alcohol contained in the pulmonary measuring instruments, it can be ruled out that both alcohol content 20.

In other words, the defendant, by May 24, 2009, has completed the degree of 2 residuess and beer until May 22:00, 2009, i.e., the following facts or circumstances found by the records or by which the facts of recognition can be known:

On the same day: 22: 26, the same day as the driver's driver's driving of the vehicle in the city and the same day is discovered in the drinking control conducted by police officers belonging to the Gandong-gu Police Station in front of the Heungdong-dong Highway Do, and the result was measured at 050% of the Defendant's drinking water level. The police officer, after making the Defendant use of water as water, ordered the Defendant to take a drinking test after about 10 minutes, and refused the Defendant to take a drinking level more than once in water immediately before the above measurement. Even if the Defendant was able to take a drinking test before about 10 minutes, it can be ruled out that the Defendant's drinking level cannot be determined within 0 minutes of alcohol level from the point of measuring the alcohol level after 0 minutes of alcohol level to the point of view that the Defendant's last 5 minutes of alcohol level can not be seen as 9% of alcohol level from the point of measuring the alcohol level.

Therefore, it is difficult to readily conclude that the Defendant was a blood alcohol concentration in the Si. Therefore, it is difficult to deem that the Defendant driven a blood alcohol concentration of 0.050% under the influence of alcohol as stated in the instant facts charged.

Therefore, since the facts charged in this case constitute a case where there is no proof of crime, the court below should have pronounced innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, but found the defendant guilty of the facts charged in this case. The judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

3. Conclusion

If so, the defendant's appeal is reasonable, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following judgment is rendered after pleading.

The summary of the facts charged of this case is the same as the statement in Article 2-2-3(a). As examined in Section 2-3(c) of the above, the above facts charged constitute a case where there is no proof of crime, and thus, it is so decided as per Disposition with the decision of not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Lee Dok-su

Judges Kang Jeong-hee

Judges Kim Jong-chul