The defendant's appeal is dismissed.

1. In light of the Defendant’s final drinking time and distance at the time when the alcohol was measured, the possibility that the Defendant’s blood alcohol concentration at the time of the breath measurement could have been less than 0.05% at the time of driving of the instant case cannot be ruled out. However, the lower court found the Defendant guilty of charges of violating the Road Traffic Act (driving) against the Defendant by misunderstanding the facts.

2. Determination

A. On November 25, 2016, the Defendant, while under the influence of around 00:26, the alcohol level of the blood alcohol level of 0.069%, driven CMW car at the 2km section from the 3-63 km-dong, Mapo-dong, Mapo-gu, Seoul, with the shooting distance near active duty service at around 0.069%.

B. The judgment of the court below is that there is an interval between the point of time and the point of time between the point of time of alcohol driving and the point of time between the point of time of measuring the blood alcohol concentration, and that time seems to rise the blood alcohol concentration.

Even if such circumstance alone makes it impossible to prove that the alcohol concentration at the time of actual operation exceeds the standard value of punishment.

shall not be deemed to exist.

In such a case, the punishment level was higher than the standard level at the time of driving.

Whether it can be seen or not shall be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances acknowledged by evidence, such as the distance between driving and measurement, the difference between the value of alcohol concentration and the standard value of punishment in measured blood, the continuous time and quantity of drinking, the driver’s behavior level at the time of crackdown and measurement, and the situation of the accident, if there is a traffic accident, etc. (see Supreme Court Decision 2013Do6285, Oct. 24, 2013). In light of such legal principles, the health stand in the instant case in light of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, namely, the distance between the time when the Defendant finished driving and the time when the Defendant renders a breath measurement is about 28 minutes.