Defendant

Prosecutor

Ise-hee

Attorney Park Jong-sung (Korean)

Jeonju District Court Decision 2009Dadan332 decided September 10, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

Although the measurement of blood alcohol content against the defendant is an additional investigation due to illegal arrest, the defendant voluntarily responded to the third third alcohol measurement demand of police officers, demands a re-measurement of alcohol measurement, and demands a measurement through blood collection, etc., the result of blood collection measurement constitutes an exception to the principle of exclusion of illegally collected evidence, and thus, the court below denied the admissibility of evidence and rendered a verdict of innocence against the defendant. Thus, the court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

2. Determination on the grounds for appeal

A. Summary of the facts charged

On December 12, 2008, at around 23:16, the Defendant driven a car owned by the Defendant (vehicle number omitted) e.g. (vehicle number omitted) e., 520% under the influence of alcohol at a section of about 20 meters from the front of the ○○○○○○ House located in the Chosan-si, a Sinsan-si, to the front of the △△△△△△△△△△ Hospital located in the Donsan-si, a Donsan-si.

B. The judgment of the court below

According to the records, the court below found the defendant guilty on December 12, 2008, as follows: (1) as there was a contact with the above vehicle parked while driving his own vehicle (hereinafter "victim") on December 22, 200; (2) police officers called the scene by the report of the damaged vehicle; (3) police officers asked the defendant to travel to the border area to measure drinking level; (4) the defendant's refusal to arrest the defendant on the ground that "the police officers did not drink and did not take any accident or accident," and (3) the defendant did not appear to have followed the 20th police officer's lawful request for drinking level on the ground that "the police officer's voluntary arrest warrant was not carried out by the police officer's 20th police officer's 6th police officer's arrest warrant; (3) the defendant did not appear to have taken measures to measure drinking level on the ground that the police officer's voluntary arrest warrant was not carried out by the police officer's 20th police officer's 3th police officer's police officer's order.

C. Judgment of the court below

Article 308-2 of the Criminal Procedure Act provides that "Any evidence obtained in violation of the due process shall not be admitted as evidence." In principle, the secondary evidence obtained by an investigative agency based on the investigation agency as well as those obtained without following the procedure prescribed by the Constitution and the Criminal Procedure Act shall not be admitted as evidence for conviction.

However, in exceptional cases where the act of violation of procedures by an investigative agency does not constitute a violation of the substantive contents of due process, and rather, it is deemed that the Constitution and the Criminal Procedure Act provide procedures for criminal proceedings to ensure harmony between the principles of due process and the discovery of substantial truth, and thereby would result in a violation of the intent of realizing criminal justice, the court may use such evidence as evidence for conviction. Accordingly, when a court finally determines whether to grant admissibility of secondary evidence, it should first consider all circumstances related to the collection of primary evidence, namely, the purport and content of the procedural provision, namely, the degree and degree of violation, the specific details and possibility of violation, the nature of the right or legal interest to be protected, the degree of relation between the defendant and the collection of evidence, the degree of relation between the procedure and the collection of evidence, and the perception and intent of the investigative agency, and further, the court should consider the causal relationship or dilution based on the primary evidence and all further specific circumstances generated in the course of collecting secondary evidence based on the primary evidence (see, e.g., Supreme Court en banc Decision 2007Do13607.

In light of the above legal principles, the evidence duly adopted and examined by the court below, and the following circumstances revealed by the statement of the defendant and the witness at the court below, namely, the defendant was requested to respond to a drinking alcohol test after driving on the earth, but the defendant was forced to refuse it, and the defendant responded to a 3rd drinking test. As a result, as the result, the police officer was punished for drinking driving, the police officer demanded blood measurement to collect more favorable materials from him, and the police officer in charge was forced to accompany the defendant to the nearby hospital, and the police officer was forced to collect blood by accompanying the defendant to the police officer in this case. Even if the police officer's act was conducted on the ground of the police officer's non-indicted 20-5 of the Criminal Procedure Act at the time of arrest, the police officer's voluntary request to take a drinking alcohol test constitutes an arrest by force, not a voluntary driving on the ground that the police officer's act was conducted during the 20th day after being transferred to the police officer (the police officer's voluntary arrest of the defendant's 20th day after being conducted by the police officer's driver).

Therefore, the lower court’s judgment that deemed the Defendant’s blood measurement result as inadmissible is erroneous by misapprehending the legal doctrine on the admissibility of evidence, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the criminal facts of this case is the same as the description of Paragraph 2 (a) above.

1. The witness Nonindicted Party 1’s statement at the trial court

1. The legal statement of the lower court by the witness Nonindicted 3 and Nonindicted 4

1. The police statement of Nonindicted Party 2

1. A survey report, a photograph, an appraisal report, and a report on the detection of a master driver;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 150 Subparag. 1 and Article 44(1) of the former Road Traffic Act (amended by Act No. 9580 of Apr. 1, 2009), the selection of fines

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Next-ho (Presiding Judge) (Presiding Judge)