Whether a police officer may request a test by a drinking-free measuring instrument, which is the prior procedure for a test by a drinking-free measuring instrument, in order to confirm whether a driver's drinking or the degree of drinking (affirmative)

Articles 44(2) and 148-2(1)2 of the former Road Traffic Act (Amended by Act No. 15530, Mar. 27, 2018)

Supreme Court Decision 2016Do16121 Decided June 8, 2017 (Gong2017Ha, 1496) Supreme Court Decision 2017Do5115 Decided June 15, 2017

Defendant 1 and one other

Defendant 2 and Prosecutor (Defendant 1)

Attorneys Kim Jong-ho et al.

Ulsan District Court Decision 2017No522 decided July 21, 2017

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Ulsan District Court Panel Division. Defendant 2’s appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

For the reasons indicated in its reasoning, the lower court reversed the part of the first instance judgment that acquitted Defendant 2 and sentenced Defendant 2 guilty. Examining the relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the trial-oriented principle, direct psychological principle, and the crime of escape from a criminal.

The ground of appeal disputing the effect of the judgment of the court below is not accepted, since there is no evidence to support the reversal of the judgment of the court below which was pronounced not guilty by the presiding judge.

2. As to the Prosecutor’s ground of appeal

A. In order to identify whether a police officer is under the influence of alcohol pursuant to Article 44(2) of the former Road Traffic Act (amended by Act No. 15530, Mar. 27, 2018; hereinafter “former Road Traffic Act”), a police officer’s measurement conducted to identify whether a driver is under the influence of alcohol pursuant to Article 44(2) of the same Act shall be understood as a measurement conducted by a drinking-free measuring instrument to objectively convert the degree of his/her taking into consideration the degree of taking, i.e., a measurement conducted by a drinking-free measuring instrument. In addition, a police officer has a certain level of discretion as to the method and frequency of measurement conducted within reasonable limits when measuring whether a driver is under the influence of alcohol or the degree of taking alcohol. Accordingly, a police officer may demand a test conducted by a drinking-free measuring instrument, which is closely related to the measurement by a drinking-free measuring instrument, as a prior procedure, to check whether a driver’s drinking or the degree of

"Where a police officer fails to comply with a breath test" under Article 148-2 (1) 2 of the former Road Traffic Act means a case where it is objectively evident that a driver who has a reasonable ground to be deemed to be under the influence of alcohol has no intent to respond to a breath test in light of the overall progress of the case. In a case where a police officer requests a test by a breath test at the pre-stage stage of a breath test to confirm whether a driver who has a reasonable ground to be deemed under the influence of alcohol is under the influence of alcohol, if a police officer is expected to take a breath test according to the results of the test and the driver expressed his/her intent to refuse a breath test by explicitly refusing a breath test even though he/she was aware of such circumstance, the act of refusing a breath test can be deemed to objectively clearly express his/her intention not to respond to the measurement by the breath test (see, e.g., Supreme Court Decisions 2016Do16121, Jun. 8, 2015).

B. The lower court, on the following grounds, determined that the act of Nonindicted 1 by the police officer Nonindicted 1 putting about five minutes Defendant 1 to Defendant 1 constitutes an illegal arrest, and thus, the demand for measurement of drinking conducted in an illegal arrest is also illegal, and thus, even if such demand was not complied with, it did not constitute a crime of violation of the Road Traffic Act

1) Even though Defendant 1 had been forced detention from a police officer because he had been forced to do so to a cargo vehicle's article, which had been parked in a two-lane road after getting off from the patrol vehicle, he did not appear to be a behavior attributable to the intention of not complying with the alcohol alcohol measurement, and does not seem to be a situation requiring protective measures.

2) At the time, a police officer, without taking a separate protective measure against Defendant 1, put the police officer to a breath without taking a separate protective measure against Defendant 1. In light of the fact that the police officer demanded a drinking test on three occasions upon arrival of a drinking measuring instrument and then arrested an offender in the act of violation of the Road Traffic Act, the police officer seems to have put Defendant 1 on the breath measure

3) There is no evidence suggesting that Defendant 1’s investigation procedure for the collection of evidence on drunk driving satisfies the lawful requirements, such as arrest of Defendant 1 as a flagrant offender or obtaining consent on voluntary driving, etc., for the purpose of taking a drinking test having meaning.

C. However, according to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

1) On May 2, 2016, Defendant 1, while driving a new wall drinking on the part of the driver of Nonindicted Party 2, who was previously driven by the driver of Nonindicted Party 2, was aware of the collision at the time of the internship. At this time, the driver of both vehicles, by opening the window of the driver’s seat and taking a bath to each other. Nonindicted Party 2, who was driving the vehicle on the part of Nonindicted Party 2, was trying to drive the vehicle while driving the vehicle after driving Nonindicted Party 2, Defendant 1, while driving the vehicle on the part of the driver’s seat while driving the vehicle after driving Nonindicted Party 2, Defendant 2 expressed a desire to Nonindicted Party 2 several times in the form of the driver’s seat window, and reported Nonindicted Party 2 to

2) The police officer Nonindicted 1, who was dispatched to the site, conducted a test for drinking alcohol test to Nonindicted 2, but did not result in a drinking reaction, and Nonindicted 2, Defendant 1, as the station, tried to have driven a drinking test. Nonindicted 1, who was employed by Defendant 1, was attached to Defendant 1’s cell phone number on the front glass of the vehicle parked near the site, and the number of which was attached to Defendant 1’s cell phone number on the front glass of the vehicle parked near the site, and was the same as the phone number received by Defendant 1’s report on drinking driving to the police, and confirmed that the time operation of the vehicle was not old, Defendant 1 conducted a drinking test to that effect, on the ground that Defendant 1 was found to have driven a drinking alcohol test, and the drinking reaction was found

3) Defendant 1 was forced to drive under the influence of alcohol, and on his own, boarded the patrol vehicle at the site, with Nonindicted Party 1, etc., and demanded that Defendant 1 “I would go to the patrol vehicle, I would go to the seat. I would go to the patrol vehicle,” and Nonindicted Party 1 left Defendant 1.

4) At the time of the patrol, Nonindicted Party 1 had no drinking measuring instrument at the time, contacted the neighboring terrestrial group, led Nonindicted Party 1 to have a drinking measuring instrument at the lower site, and prevented Defendant 1 from leaving the scene on the ground that it was between the house and the house. Such circumstances continued to have 5 minutes until the drinking measuring instrument arrives.

5) After having arrived at a drinking measuring instrument, Nonindicted Party 1 asked Defendant 1 to take a drinking test four times at intervals of about 10 minutes, and Defendant 1 refusing to comply therewith was arrested in the act of crime on the ground that he refuses to take a drinking test.

D. We examine these circumstances in light of the legal principles as seen earlier.

1) As seen earlier, the Supreme Court made a clear judgment on two occasions immediately before the closing of argument in the lower court that, in a case where a driver is expected to take a measurement by a drinking-free measuring instrument according to the results of the test conducted by the drinking-free machine and the driver explicitly expresses his/her intent to refuse a drinking test by explicitly refusing to comply with the test conducted by the drinking-free machine even though he/she was aware of such circumstances, the act of refusing the test by

2) Under these legal principles, it is necessary to examine whether the lower judgment is reasonable. Since Defendant 1 appears to have a considerable reason to recognize that Defendant 1 was driving a motor vehicle under the influence of alcohol, it is deemed that Defendant 1 was in need of a drinking test to verify whether Defendant 1 was driving a motor vehicle under the influence of alcohol. In such a situation, there is room to view that Defendant 1’s refusal to comply with a series of requests by police officers, which are scheduled for the measurement by the drinking meters, if Defendant 1’s refusal to comply with the demands of the police officers for the measurement by the drinking meters.

3) Therefore, the lower court established the crime of violation of the Road Traffic Act by Defendant 1’s attempt to leave the scene by avoiding a police officer’s demand for the measurement of alcohol, or escape from the scene. Accordingly, it is necessary to re-determine whether Defendant 1’s act of attaching Defendant 1 by the police officer constitutes an act after the establishment of the crime, or whether Defendant 1’s measure constitutes a refusal of the measurement of alcohol in the situation of illegal arrest is still illegal arrest.

As such, the court below erred by misapprehending the legal principles on the refusal to measure alcohol under Article 148-2 (1) 2 of the former Road Traffic Act, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Of the lower judgment, the part against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)