The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. In fact, the Defendant, at the time of the instant case, faithfully responded to the police officer’s demand for alcohol testing, and the measurement of drinking at the time was not proper, and the Defendant did not refuse the alcohol testing.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous and adversely affected by the judgment.

B. The sentence sentenced by the lower court to the Defendant (the penalty amounting to five million won) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. The phrase “cases of failing to comply with a police officer’s measurement” under Article 148-2 subparag. 2 of the Road Traffic Act means under the influence of alcohol in light of the overall progress of the case.

a driver who has a reasonable reason to be appointed is objectively and objectively deemed to have no intention to respond to the measurement of drinking.

At this time, the measurement conducted to identify whether a driver is under the influence of alcohol should be understood as a measurement by the respiratory measuring instrument, namely, the method of objectively converting the degree of the driver's practice from the pulmonary test, and the voluntary cooperation of the driver is essential.

따라서 운전자가 음주 측정을 요구 받고 호흡 측정기에 숨을 내쉬는 시늉만 하는 등 형식적으로 음주 측정에 응하였을 뿐 경찰공무원의 거듭 된 요구에도 불구하고 호흡 측정기에 음주 측정 수치가 나타날 정도로 숨을 제대로 불어넣지 아니하는 등 음주 측정을 소극적으로 거부한 경우라면 소극적 거부행위가 일정 시간 계속적으로 반복되어 운전자의 측정 불응의 사가 객관적으로 명백하다 고 인정되는 때에 비로소 음주 측정 불응죄가 성립한다.

On the other hand, if the driver explicitly expresses his intention to refuse the measurement of drinking alcohol, it shall be immediate.