Requirements for the establishment of a crime of non-compliance with the measurement of alcohol under Article 107-2 and Article 41 (2) of the former Road Traffic Act.

Article 107-2 (2) and Article 41 (2) of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199), even if it is not necessary for traffic safety and prevention of danger under the interpretation of Article 107-2 (2) of the same Act, in full view of the objective circumstances at the time of the request for a drinking test, if there is considerable reason to recognize a driver to have driven a motor vehicle while under the influence of alcohol, and if it is necessary to confirm whether a driver is a drunk, it is obvious that a police officer cannot confirm whether a driver is a drunk by means of a drinking test after the latter. If the driver refuses to take a drinking test, a police officer may request the driver to take a drinking test, and if the driver refuses to take a drinking test, a crime of non-driving under the above Act is established. Whether there is a reasonable reason to recognize the driver as having driven a motor vehicle under the influence of alcohol should be determined after considering the appearance, attitude and behavior of the driver after the driving of the driver. In particular, it is required to determine the objective and situation of drinking.

Articles 41(2) and 107-2 subparag. 2 of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199)

Supreme Court Decision 94Do2172 delivered on May 27, 1993 (Gong1993Ha, 1941), Supreme Court Decision 96Do3069 delivered on June 13, 1997 (Gong1997Ha, 2098), Supreme Court Decision 97Nu20755 delivered on March 27, 1998 (Gong198Sang, 1233)

Defendant

Prosecutor

Seoul District Court Decision 98No9843 delivered on June 22, 1999

The appeal is dismissed.

We examine the grounds of appeal.

Article 107-2 subparag. 2 and Article 41(2) of the former Road Traffic Act (amended by Act No. 5712 of Jan. 29, 199), even though there are reasonable grounds to recognize a driver as having driven a motor vehicle while under the influence of alcohol and prevention of danger, considering the objective circumstances at the time of the request for a drinking test, if it is not clear that the driver cannot confirm whether a driver has driven a motor vehicle under the influence of alcohol, and if it is necessary to confirm whether a driver has driven a motor vehicle, the police officer may request a drinking test after the latter. If the driver refuses a drinking test, the police officer can request the driver to take a drinking test, and if the driver refuses a drinking test, the crime of non-driving under the above Act is established (see, e.g., Supreme Court Decision 96Do3069, Jun. 13, 1997). On the other hand, whether there is a reasonable reason to recognize the driver's driving of a motor vehicle under the influence of alcohol is required to determine the driver's appearance and behavior after the latter.

In light of the above legal principles and records, it is reasonable that the court below determined that the defendant was driving in a drinking state, and that there is no reasonable ground to recognize that the defendant was driving in the influence of alcohol in light of the situation at the time of refusal to measure alcohol in this case, and maintained the judgment of the court of first instance which acquitted the defendant of violation of the Road Traffic Act among the facts charged in this case, and there is no error of misconception of facts or misapprehension of legal principles as argued in

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Im-soo (Presiding Justice)