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The defendant's appeal is dismissed.
Reasons
1. The summary of the grounds for appeal was erroneous by the lower court that found the Defendant guilty of the instant facts charged, even though the Defendant refused to take a drinking test in an illegal arrest condition.
2. Article 199(1) of the Criminal Procedure Act explicitly states the principle of voluntary investigation.
The act of accompanying a suspect to an investigative agency, etc. in the form of obtaining consent from an investigator in the course of an investigation does not have any means to restrain the physical freedom of the suspect even though it is substantially similar to the arrest and detention, so it is not systematic and practical to guarantee the voluntariness as well as institutionally. Moreover, there is a high possibility that the Constitutional Act and the Criminal Procedure Act do not provide various rights guarantee devices to the suspect who is arrested or detained on the ground that it is prior to the regular stage of arrest and detention.
Therefore, it is reasonable to view that the legality of the accompanying is recognized only in cases where it is proved by objective circumstances that the investigator was carried out by the voluntary will of the suspect solely, such as where the investigator knew that he/she could refuse the accompanying to the suspect prior to the accompanying, or the suspect who was accompanied could freely leave the accompanying place or at any time.
(See Supreme Court Decision 2009Do6717 Decided June 30, 201, etc.). According to the evidence duly admitted and examined by the lower court, the lower court: (a) reported 112 to regulate drinking drivers; (b) discovered the Defendant who operated an apartment at the entrance of the apartment at the same apartment to the 101st parking lot at the same apartment site at the same 101st parking lot; and (c) found the Defendant who left the apartment at the vehicle; (b) at the time of control, the Defendant was divided into two parts; (c) the face was red; and (d) the direction of walk was displayed.