Defendant

Prosecutor

Escopic (prosecutions) and public trial

Attorney Jeong-il in charge of Macro

Daegu District Court Decision 2012Meu6866 Decided July 11, 2013

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

According to the evidence submitted by the prosecutor, the defendant can fully recognize the fact that the blood alcohol content was at least 0.1% at the time of driving a vehicle. Nevertheless, the judgment of the court below which acquitted the defendant of the facts charged in this case is erroneous in the misapprehension of facts, which affected the conclusion

2. Determination

A. Summary of the facts charged

On September 22, 2012, around 08:30 on September 2, 2012, the Defendant driven (vehicle number omitted) car in the state of alcohol alcohol concentration of about 0.158% at the section of approximately 200 meters before the △△△△△△△△△△ in front of the restaurant for ‘○○○○○○○ Hospital' located in the Daegu Northern-gu, Daegu Northern-dong.

B. Determination

(1) While the Defendant alleged that he would drive a car as stated in the above facts charged and then drink additionally at △△ △ Dog which is the place in which the Defendant was arrested, Nonindicted 1, who arrested the Defendant at the time, stated in the court of the trial that “the police officer, who was on the table, was on the table, but was on the table, but was on the table, but was not on the table.” In light of the fact that Nonindicted 2, a witness Nonindicted 2, also stated that “I would not know about whether I was on the table,” and that “I would not know about whether I was on the table,” the above argument by the Defendant cannot be accepted.

(2) The Defendant, along with Nonindicted 3 and 4 on the day of the instant case, discussed the store operation plan from 05:30 to 06:30, which the Defendant operated on the day of the instant case, and then moved from 06:40 to 06:40, which is located near the above △△ point, to the restaurant of “○○○○○ Hospital”, and ordered 1 disease of the owner of the instant vehicle to be frighted from 08:10 to 08:10, and suggested that the store operation plan should be described more on the store operation plan to Nonindicted 4, and then the Defendant was driven in the instant case during the course of moving and parking of two vehicles parked on the roadside before moving to the above △△ point.

In light of the circumstances that the court below properly adopted and examined by the evidence that the court below and the court below properly adopted, the defendant's final drinking time cannot be determined as 04:30 minutes as stated in the report on the state of drinking driver's situation, and instead, it cannot be ruled out that the defendant's final drinking time is 08:00 or more as close as at the time when the accident that caused Non-Indicted 5's vehicle by driving occurred, and thus, the possibility of drinking is 08:0 or more as at the time of the accident that caused Non-Indicted 5's vehicle.

However, although the blood alcohol concentration due to drinking is a personal car according to the body quality of the respondent, the kind of drinking alcohol, the speed of drinking, and the degree of food that is disguised at the time of drinking, it is known that the blood alcohol concentration due to drinking has reached the highest level between 30 to 90 minutes after drinking, and thereafter, it is gradually decreased by about 0.08% to 0.03% per hour. However, there is no reliable statistical data yet known as to whether the blood alcohol concentration after drinking is increased at a certain rate per hour until the blood alcohol concentration reaches the highest level, and as for the blood alcohol concentration measured by a drinking measuring instrument, it is possible to reverse the blood alcohol concentration in the section corresponding to the lower class after the blood alcohol concentration reaches the highest level, but it is difficult to calculate the blood alcohol concentration in the section corresponding to the risen.

In light of the aforementioned legal doctrine, based on the fact that the blood alcohol concentration reaches the highest level at the time when 90 minutes elapsed after the final drinking was based on the most favorable premise for the Defendant, the Defendant’s blood alcohol concentration at around 08:0 of September 22, 2012, which is the time when the Defendant drives the instant vehicle, is likely to constitute an increase in blood alcohol concentration at around 08:0 of the Defendant’s final drinking time or within 90 minutes thereafter, which is within 90 minutes after the Defendant’s final drinking time. Therefore, as alleged by the prosecutor, the Defendant’s blood alcohol concentration at around 08:30 of September 22, 2012, at around 09:48 of September 22, 2012, when the blood alcohol concentration at around 09:48 of the Defendant’s blood alcohol concentration at the time of driving the instant vehicle, cannot be readily concluded that the Defendant’s blood alcohol concentration at least 10% of the Defendant’s blood alcohol concentration at the time of driving.

Therefore, the court below's finding the Defendant not guilty of the facts charged of this case is just and there is no error of mistake of facts as alleged by the prosecutor.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Sung-soo (Presiding Judge)