The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles, the Defendant responded to a drinking measurement by demanding a police officer to respond to a drinking measurement, and by inserting the breath in a drinking measuring instrument, and accordingly, the Defendant did not refuse a drinking measurement.

Even if the defendant refused to take a drinking test, the police officer's act of demanding a drinking test by visiting the defendant's house without following lawful procedures, such as obtaining a search warrant, etc., when the necessity of taking a drinking test is extinguished due to the completion of driving cannot be deemed legitimate performance of official duties.

Therefore, the defendant's act of failing to comply with the drinking measurement is not a crime of violation of the Road Traffic Act (Refusal of drinking measurement).

However, the judgment of the court below that found the Defendant guilty of the facts charged of this case is erroneous in the misunderstanding of facts and legal principles.

B. The sentence sentenced by the court below to the defendant (six months of imprisonment, two years of suspended sentence, 40 hours of lecture for compliance driving) is too unreasonable.

2. Determination

A. 1) Whether a mistake of facts and misapprehension of the legal doctrine is erroneous or not, the phrase “cases of failing to comply with a police officer’s measurement” as referred to in Article 148-2(1)2 of the Road Traffic Act means under the influence of alcohol in light of the overall progress of the case.

a driver who has a reasonable reason to be appointed is objectively and objectively deemed to have no intention to respond to the measurement of drinking.

At this time, the measurement conducted to identify whether a driver is under the influence of alcohol should be understood as a measurement by the respiratory measuring instrument, namely, the method of objectively converting the degree of the driver's practice from the pulmonary test, and the voluntary cooperation of the driver is essential.

따라서 운전자가 음주 측정을 요구 받고 호흡 측정기에 숨을 내쉬는 시늉만 하는 등 형식적으로 음주 측정에 응하였을 뿐...