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The prosecutor's appeal is dismissed.
Reasons
1. According to the evidence submitted by the prosecutor, such as the main driver’s statement in the circumstance statement, etc., the court below acquitted the defendant, although the defendant could fully recognize the facts of driving under the influence of alcohol with a blood alcohol content of 0.104% as stated in the facts charged in the instant case, which affected the conclusion of the judgment by misunderstanding the facts.
2. Determination
A. In a situation where it is impossible to determine whether the blood alcohol level at the time of driving under the relevant legal doctrine is the rise of the blood alcohol level or the lower time, even if the blood alcohol level measured at the time when the driving was completed and at the time when a considerable time has elapsed, it cannot be readily concluded that the blood alcohol level at the time of actual driving exceeded the penal standard.
Although there are differences for each individual, it is generally known that the blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest level, and then reduces about 0.08% and 0.03% (average about 0.015%) per hour. If the driving is in the rise season, there is a possibility that the blood alcohol concentration at the time of driving is lower than the blood alcohol concentration actually measured.
However, even if there is an interval between the time and the time of the measurement of the blood alcohol concentration and the time of the measurement, it cannot be deemed impossible to prove that the blood alcohol concentration at the time of actual operation exceeds the punishment standard due to such circumstance.
In such cases, the issue of whether the person had been above the standard value of punishment even at the time of driving is recognized by evidence, such as the time interval between the driving and the measurement, the difference between the measured blood alcohol concentration and the standard value of punishment, the continuous time and drinking, the driver's behavior level at the time of the measurement, the situation of the accident and the circumstance, etc.