Defendant

Prosecutor

Kim Tae-tae (Court) and the lowest court (Court)

Attorney Kim Young-chul (Korean National Assembly Line)

Seoul Central District Court Decision 2012Gohap1283 Decided January 10, 2013

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

Although it is reasonable to view that the defendant's blood alcohol concentration was expressed in the punishment of the defendant's blood alcohol concentration at the time of drinking driving, the court below acquitted the defendant on the charges of this case on the ground that the blood alcohol concentration at the time of drinking measurement has risen, there is an error of law by mistake of facts.

2. Summary of the facts charged in this case

A. Main facts charged

On 02:31 on 08.07.08.08., the Defendant driven approximately 1 km from the road on which he knows of not more than 0.201% of the blood alcohol concentration in Seongbuk-gu Seoul, Seongbuk-gu to the road (vehicle number omitted) in front of 484, Seongbuk-gu, Seoul.

B. Preliminary charges

On 02:31 around 08, 2012, the Defendant driven a vehicle about 1 km from the road that he knows about 0.080% of the blood alcohol concentration to the road that he knows about 0.080% of the Seongbuk-gu Seoul Seongbukdong 484, Seongbuk-gu, Seongbuk-gu.

3. The judgment of the court below

A. Judgment on the main facts charged

The lower court acknowledged the following circumstances based on the record: ① blood alcohol concentration is 0% higher than that of this case after drinking; ④ blood alcohol concentration is 0.201% higher than that of this case at the time of blood collection measurement (02:43); ② there is still no scientific credibility as to whether blood alcohol concentration after drinking reaches the highest value; ② if blood alcohol concentration is lower than that of this case, it is difficult to view that the Defendant was 0% higher than that of this case at the time of blood collection as 0% lower than that of this case; ③ if the Defendant’s blood concentration was 0% higher than that of this case, it is difficult to view that the Defendant was 8% higher than that of this case for the first time during which blood alcohol concentration was collected, and it is difficult to view that the Defendant’s blood concentration was 0% higher than that of this case at the time of 0% higher than that of this case.

B. Judgment on the ancillary charges

In light of the following circumstances acknowledged by the record, i.e., blood alcohol concentration of 0.080% by the pulmonary measurement of this case is not determined by a breath immediately after the breath test (02:08), but merely by 23 minutes after the breath test (02:31). ② The Defendant’s termination of drinking, termination of driving, and breath measurement time alone cannot be determined as to whether the blood alcohol concentration has risen toward the highest level or at the highest level. Rather, according to the general view that the blood alcohol concentration from 30 minutes after drinking reaches the highest level of 90 minutes, it cannot be determined that the Defendant’s breath alcohol concentration at the time of breathing is within the total 46 minutes after the breath test and that there is no possibility that the breath alcohol content at the time of breath test can be determined to have been relatively less than 30% of the breath alcohol concentration by using the breath mark.

4. Judgment of the court below

Examining the evidence duly adopted and examined by the court below in comparison with the records, the court below is just in finding the defendant not guilty of the facts charged in this case for this reason, and there is no illegality that affected the conclusion of the judgment as pointed out by the prosecutor. Therefore, the prosecutor's assertion is without merit

5. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since it is without merit.

Judges Kim Jong-ju (Presiding Judge)