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The prosecutor's appeal is dismissed.
Reasons
1. The main point of the grounds of appeal is that the blood alcohol concentration of the defendant was calculated most favorable to the defendant and calculated through the Hemark formula, but the court below ruled that the blood alcohol concentration of the defendant at the time of the accident does not exceed 0.05% and ruled that the defendant's blood alcohol concentration does not exceed 0.05%, and dismissed the prosecution against the defendant as to the violation of the Road Traffic Act (driving) and the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents against the defendant. Thus
2. Determination
A. The legal doctrine cannot determine whether the blood alcohol concentration at the time of drunk driving is belonging to the situation where the blood alcohol concentration at the time of alcohol driving or belongs to the situation where it comes down to the highest level, and in a case where there is a possibility of rise rather than that, the blood alcohol concentration at the time of alcohol driving cannot be determined by applying only the part concerning the decomposition extinguishment due to the time spent during the so-called Hemark formula, based on the blood alcohol concentration measured after a considerable time from the time of alcohol driving, and cannot determine the blood alcohol concentration at the time of alcohol driving by reverseizing from the time of blood alcohol concentration measurement.
(See Supreme Court Decision 2006Du15035 Decided January 11, 2007, etc.). B.
According to the records of this case, the Defendant’s final drinking time record reveals the following facts: (a) from around 00:00 on November 26, 2012 to around 01:30, the Defendant is aware of the fact that the Defendant was drinking at the head of Hop House; and (b) the Defendant was traveling from Hop House to the telecom, around November 26, 2012, at the parking lot near the above Hop House, at around 01:50 on November 26, 2012.
Therefore, the defendant's final drinking time is presumed to be 01:30, and there is no evidence that the drinking has been terminated before it.
C. According to the records of this case as to whether drinking water can be confirmed at the time of the accident, the method of pulmonary measuring devices around November 26, 2012 to the defendant around 8:27.