Defendant

Prosecutor

Pool

Attorney Choi Young-young (National Ship)

Cheongju District Court Decision 2003Ma2283 Delivered on July 8, 2004

The prosecutor's appeal is dismissed.

1. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

피고인은 2003. 6. 6. 16:00경 청주시 흥덕구 봉명동 (번지 생략) 소재 도로상에서 충북청주 (등록번호 생략) 125㏄ 오토바이를 운전하던 중 안전모 미착용으로 청주서부경찰서 사창파출소 소속 경찰관인 경장 공소외 1에게 적발된 후, 같은 날 17:00경 위 파출소에서 적발당시 피고인의 얼굴이 붉고 입에서 술냄새가 심하게 나는 등으로 피고인이 술에 취한 상태에서 오토바이를 운전하였다고 인정할 만한 상당한 이유가 있다는 이유로, 위 공소외 1로부터 정당한 절차에 따라 음주측정요구를 요구받고도 이에 응하지 아니하였다.

B. The judgment of the court below

The court below held that the crime of refusing to measure drinking under subparagraph 2 of Article 107-2 of the Road Traffic Act is established when a person who is deemed to have a considerable reason to be under the influence of alcohol fails to comply with the measurement by a police officer under Article 41 (2) of the same Act. The act of demanding a drinking measurement by a police officer is an act of performing official duties and must be conducted lawfully and in accordance with justifiable procedures. If it is necessary to take the driver into the police box to measure drinking, a police officer controlling drinking control shall request the driver to accompany the police box to the police box before carrying the police box, and then investigate the case or the driver refuses to carry the police box without his consent, if it is difficult for the driver to arrest him as an flagrant offender or to take the emergency arrest box to the effect that it is hard for the court below to find that there is no other legitimate reason to believe that the defendant's refusal to arrest the police officer without any justifiable reason or to measure drinking, and such act constitutes an unlawful request for arrest of the defendant, as provided in the Constitution and the Criminal Procedure Act.

2. Summary of grounds for appeal by a prosecutor;

A. Error of mistake

The judgment of the court below which concluded that Non-Indicted 1, the control police officer, was made in an unlawful arrest solely on the fact that Non-Indicted 2's statement and investigation records suspected of credibility had not been bound with the documents related to the arrest of flagrant offenders. There was an error of law by mistake of facts.

B. Legal principles

Even if Non-Indicted 1's request for alcohol measurement was made during illegal arrest, the crime of obstruction of performance of official duties is not necessary to protect the illegal execution of official duties. However, since the crime of violation of the Road Traffic Act due to refusal of alcohol measurement is protected by the law of the smooth operation and safety of road traffic, if the request for alcohol measurement meeting the requirements prescribed by the Road Traffic Act was not complied with, the crime of obstruction of performance of official duties is established. However, the judgment of the court below which held that the requirements like the crime of obstruction of performance of official duties are required at the establishment of the crime of violation of the Road Traffic Act is erroneous in the misapprehension of legal principles, and even if the defendant refused the request for alcohol measurement for the reason that there is a considerable reason to recognize that he driven a vehicle while under the influence of alcohol by the police officer, the crime of refusal of alcohol measurement under the Road Traffic Act is established. Thus, the judgment

3. The judgment of this Court

A. As to the assertion of mistake of fact

(1) 기록에 의하면, 피고인은 목수로서 2003. 6. 6. 12:00경 청주시 흥덕구 봉명동 소재 봉명초등학교 앞 원룸건축공사장에서 점심을 먹으면서 막걸리를 마신 상태에서 같은 날 16:00경 작업이 끝나자 피고인 소유의 충북 청주 (등록번호 생략) 125㏄ 오토바이(이하 ‘이 사건 오토바이’라 한다)를 운전하여 봉명동 (번지 생략) 소재 피고인의 집으로 귀가하던 중 집 앞에 도착한 상태에서 근무 중인 청부서부경찰서 사창파출소 소속 경찰관인 경장 공소외 1로부터 안전모 미착용을 이유로 단속된 사실, 공소외 1은 피고인에게 운전면허증의 제시를 요구하고 피고인의 얼굴이 붉은 색을 띄고 술냄새가 심하게 나자 음주측정기를 휴대하지 않고 있다고 하면서 음주측정을 위하여 인근 사창파출소로 동행할 것을 요구한 사실, 이에 피고인은 운전면허증이 집에 있다고 하면서 처에게 연락하여 운전면허증을 가져오게 한 후 이를 공소외 1에게 제시하면서 ‘영세민이니 안전모 미착용으로만 적발해 달라’고 부탁한 사실, 그런데 공소외 1이 피고인의 요구를 거절하면 위 파출소까지 임의로 동행할 것을 요구하자 피고인은 이를 거절하였고, 이에 공소외 1의 요청으로 출동한 다른 경찰관이 순찰차로 피고인을 위 파출소까지 강제로 연행한 사실, 그 후 피고인은 공소외 1의 음주측정요구에 응하는 듯 했으나 음주측정결과가 나오도록 5초 이상 길게 불지 아니하여 유효한 측정결과가 나오지 아니한 사실, 그 과정에서 공소외 1은 피고인에게 30여분간 수갑을 채운 사실, 이 사건 수사기록에는 피고인에 대한 체포보고서, 범죄사실의 요지 및 변호인선임권 고지에 관한 확인서 등이 편철되어 있지 아니한 사실을 알 수 있다.

(2) Examining the reasoning of the lower judgment on the premise of the aforementioned facts in comparison with the record, the part of Nonindicted 1’s statement, a police officer controlling the Defendant, arrested the Defendant as an flagrant offender in the course of committing an offense on the record, is not bound in light of the fact that documents that the Defendant arrested the Defendant as an offender in the act of committing an offense and notify the gist of the offense and the right to appoint a defense counsel, etc. on the record, and on the other hand, the Defendant’s statement of Nonindicted 2, a head office, regardless of whether he was the Defendant, are reliable as it conforms to the above facts, and therefore,

B. As to the assertion of misapprehension of legal principle

(1) Article 41 (1) of the Road Traffic Act provides that "No person shall drive a motor vehicle, etc. under the influence of alcohol (including construction machinery other than construction machinery under the proviso of Article 26 (1) of the Construction Machinery Management Act; hereinafter the same shall apply in this Article, Articles 42, 43 and 107-2) although he/she is under the influence of alcohol." Paragraph (2) of the same Article provides that "if it is deemed necessary for the safety of traffic and prevention of danger or if there are reasonable grounds to recognize that a person has driven a motor vehicle, etc. under the influence of alcohol, he/she may inspect whether the driver is under the influence of alcohol, and the driver shall comply with such measurement by the Constitutional Court for the reason that the person has no reasonable ground to believe that the person has driven a motor vehicle under the influence of alcohol despite his/her request by a police officer for an illegal act violating the provisions of Article 41 (1) 1 of the Road Traffic Act," and subparagraph 2 of the same Article provides that "this person shall be punished by imprisonment or imprisonment with prison labor for not more than 50 years."

(2) Meanwhile, the "measurement" under Article 41 (2) of the Road Traffic Act means a systematic interpretation of Article 41 (3) of the Road Traffic Act that provides that a driver dissatisfied with the result of measurement may re-measurement by means of blood collection, etc. with his consent. Since it should be understood that the method of measurement, i.e., the method of collecting brea and objectively converting the degree of taking the breath from the breath from the breath and objectively converting the degree of taking the breath from the breath from the breath, should be understood as a measurement by the breath (see, e.g., Supreme Court Decisions 2001Do7121, Mar. 15, 200; 9Do5210, Apr. 21, 200).

(3) Ultimately, the Prosecutor’s ground of appeal on this part is without merit or with different premise, and thus, cannot be accepted in entirety.

4. Conclusion

Therefore, the prosecutor's ground of appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Noh Man-Gyeong (Presiding Judge)