The judgment of the court below is reversed.

The defendant shall be innocent.

1. The main point of the grounds for appeal (misunderstanding the facts) alcohol concentration among the blood content of the defendant measured by the respiratory measuring instruments exceeds 0.085% which is 0.05% which is the basic value for punishment, and the defendant was in the fluor of alcohol concentration in blood.

Although it is difficult to see that the Defendant’s blood alcohol concentration exceeds the punishment standard at the time of driving, the lower court erred by misapprehending the fact that the Defendant’s blood alcohol concentration exceeds 0.05% cannot be found, solely on the ground that the lower court’s judgment stated that “the possibility that the measurement level by the respiratory measuring instrument due to alcohol remaining in the Defendant’s drafting would have come to exceed the actual blood alcohol concentration.”

2. Prior to the judgment on the grounds of ex officio appeal, the prosecutor examined ex officio prior to the judgment on the grounds of appeal, and the prosecutor applied for changes in the indictment to “0.085% of alcohol level during blood” in the facts charged in the instant case with “not less than 0.05% of alcohol level during blood,” and the subject of the judgment was changed by this court’s permission.

Therefore, the judgment of the court below can no longer be maintained due to changes in the subject of the judgment.

However, even if there is such reason for ex officio reversal, the prosecutor's assertion of mistake about the above facts is still subject to the judgment of this court, and this is examined.

3. Determination of the facts charged and the prosecutor's assertion of mistake as to the facts modified in the trial

A. On April 26, 2016, the Defendant, while under the influence of alcohol at least 0.05% during blood transfusion at around 21:30 on Apr. 26, 2016, operated a passenger car with 10 meters away from the parking lot near Jeju-dong Post Office, Jeju-do, to the road front of the above post office.

B. The lower court’s determination is based on the following facts and circumstances.