205Do8594 Violation of the Road Traffic Act (Refusal of measurement of drinking water)

This MOS (ODR - DOS), DOS

Daejeon

Permanent Address Seoul

Defendant

Daejeon District Court Decision 20051623 Decided October 21, 2005

October 11, 2007

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

The defendant's grounds of appeal are examined ex officio prior to judgment.

Article 107-2 (2) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005; hereinafter the same shall apply) is established when a person who has reasonable grounds to be recognized as being in a drunken state fails to comply with a measurement by a police officer under Article 41 (2) of the same Act. Article 41 (2) of the same Act is established when it is deemed necessary for traffic safety and the prevention of the above examination, or when there are reasonable grounds to recognize that a police officer has driven a motor vehicle, etc. under the influence of alcohol in violation of paragraph (1) of the same Article, a driver may undergo a measurement of whether the driver is in the influence of alcohol, and the driver shall comply with such measurement by the police officer

In light of the above provision, a police officer's duty to comply with a request for a so-called alcohol test on the ground that there is a considerable reason to recognize that a person driving a motor vehicle under the influence of alcohol in violation of Article 41 (1) of the same Act is the driver of the relevant motor vehicle, and a person who is not a driver of the relevant motor vehicle is not a driver of the relevant motor vehicle, and there is no room to see that a person has violated the prohibition of driving under Article 41 (1) of the same Act, and therefore, it does not constitute a case of failing to comply with a so-called alcohol test under Article 41 (2) of the same Act

According to the reasoning of the judgment below, as to the facts charged in this case where the defendant violated Article 107-2 subparagraph 2 and Article 41 (2) of the former Road Traffic Act by refusing to comply with a police officer's request for alcohol measurement without any justifiable reason, the court below affirmed the facts charged in this case where the defendant was at the time, but even though the defendant did not actually drive a motor vehicle, "a person who has considerable reasons to recognize that he was driving a motor vehicle under the influence of alcohol" refused a alcohol measurement in light of all objective circumstances at the time of the request for alcohol measurement, the court below affirmed the facts on the premise that a crime of non-driving of alcohol is established, on the premise that the defendant's refusal to take a alcohol measurement is established, on the contrary to the facts stated in the judgment below, on the ground that the defendant's failure to take a alcohol measurement was constituted, and therefore, the defendant did not comply with the legal principles as to a request for alcohol measurement, such as acts to conceal the actual driving of the motor vehicle, and therefore, the defendant did not comply with the request for alcohol measurement.

Therefore, the judgment of the court below cannot avoid reversal even if it did not examine the defendant's grounds of appeal.

Therefore, without examining the Defendant’s grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon

Justices Kim Young-ran

Justices Kim Jae-sik

Justices Noh Jeong-hee