In a case where the meaning of “in a case where a police officer fails to comply with the measurement” under Article 148-2(1)2 of the Road Traffic Act and the refusal of measurement are merely temporary, whether the crime of non-compliance with the measurement of alcohol constitutes the crime of non-compliance with the measurement of alcohol (negative)

Article 148-2 (1) 2 of the Road Traffic Act (hereinafter “the main purpose of the punishment provision”) is to promote traffic safety by indirectly compelling a measurement of alcohol so as to facilitate the verification and punishment of drunk driving, and it is not to punish the illegality of non-compliance with the measurement itself. Meanwhile, the crime of non-compliance with the measurement of alcohol under the punishment provision is under the same statutory punishment as the crime of drunk driving more than three times which is the largest type of illegality or the crime of non-compliance with the measurement of alcohol level not less than 0.2% of alcohol level among the principal crime. Considering the legislative purport of the punishment provision, Article 38(11) of the Road Traffic Control Guidelines of the National Police Agency, it is clear that the driver non-compliance with the request for a measurement of alcohol level is clearly notified at least three times at intervals of 10 minutes, and it is evident that the police officer's refusal to comply with the request for a measurement is not a case where the driver refuses the measurement of alcohol level, and it is not a case where it is objectively acknowledged that the police officer refuses to comply with the request.

따라서 술에 취한 상태에 있다고 인정할 만한 상당한 이유가 있는 운전자가 호흡측정기에 숨을 내쉬는 시늉만 하는 등으로 음주측정을 소극적으로 거부한 경우라면, 소극적 거부행위가 일정 시간 계속적으로 반복되어 운전자의 측정불응의사가 객관적으로 명백하다고 인정되는 때에 비로소 음주측정불응죄가 성립하고, 반면 운전자가 명시적이고도 적극적으로 음주측정을 거부하겠다는 의사를 표명한 것이라면 즉시 음주측정불응죄가 성립할 수 있으나, 그 경우 운전자의 측정불응의사가 객관적으로 명백하였는지는 음주측정을 요구받을 당시의 운전자의 언행이나 태도 등을 비롯하여 경찰공무원이 음주측정을 요구하게 된 경위 및 측정요구의 방법과 정도, 주취운전자 적발보고서 등 측정불응에 따른 관련 서류의 작성 여부 및 운전자가 음주측정을 거부한 사유와 태양 및 거부시간 등 전체적 경과를 종합적으로 고려하여 신중하게 판단하여야 한다.

Articles 44(2) and 148-2(1)2 of the Road Traffic Act

Defendant

Prosecutor

Attorney Soh Jeong-won

Seoul High Court Decision 2012No4498 decided July 4, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. A. Article 148-2(1)2 of the Road Traffic Act provides that “A person who has reasonable grounds to believe that a person is under the influence of alcohol and fails to comply with a measurement by a police officer pursuant to Article 44(2) of the same Act shall be punished by imprisonment with prison labor for not less than one year nor more than three years but not more than 5 million won and by a fine not exceeding 10 million won.”

The main purpose of the above punishment provision is to promote the safety of traffic by indirectly compelling alcohol measurement at the same time, and to facilitate the verification and punishment of drunk driving and to punish the illegality of the non-compliance with measurement. Meanwhile, the crime of non-compliance with the measurement of alcohol under the above punishment provision is regulated by the same statutory punishment as the crime of self-driving with not less than three times which are the most illegal type or not less than 0.2% of alcohol concentration among the crime of self-driving, and Article 38(11) of the National Police Agency's Guidelines on Traffic Control of the National Police Agency clearly notifies the driver non-compliance with the alcohol measurement at least three times at intervals of 10 minutes in consideration of the legislative intent of the above punishment provision. In light of the above punishment provision, it is reasonable to consider that the above non-compliance with the measurement of the driver is reasonable to consider that the driver's refusal to comply with the measurement is only one time more objectively and more than two times in light of the case where the driver's refusal to comply with the measurement.

따라서 술에 취한 상태에 있다고 인정할 만한 상당한 이유가 있는 운전자가 호흡측정기에 숨을 내쉬는 시늉만 하는 등으로 음주측정을 소극적으로 거부한 경우라면, 그와 같은 소극적 거부행위가 일정 시간 계속적으로 반복되어 운전자의 측정불응의사가 객관적으로 명백하다고 인정되는 때에 비로소 음주측정불응죄가 성립한다고 보아야 하고, 반면 그러한 운전자가 명시적이고도 적극적으로 음주측정을 거부하겠다는 의사를 표명한 것이라면 그 즉시 음주측정불응죄가 성립할 수 있으나, 그 경우 운전자의 측정불응의사가 객관적으로 명백한 것이었는지는 음주측정을 요구받을 당시의 운전자의 언행이나 태도 등을 비롯하여 경찰공무원이 음주측정을 요구하게 된 경위 및 그 측정요구의 방법과 정도, 주취운전자 적발보고서 등 측정불응에 따른 관련 서류의 작성 여부 및 운전자가 음주측정을 거부한 사유와 태양 및 그 거부시간 등 전체적 경과를 종합적으로 고려하여 신중하게 판단하여야 한다.

B. In addition, it is reasonable to view that the investigator's accompanying the suspect to the investigative agency, etc. in the form of obtaining the consent of the parties in the course of the investigation is legitimate only when it is clearly proven by objective circumstances that the suspect's voluntary will was accompanied solely (see Supreme Court Decision 2005Do6810, Jul. 6, 2006). Meanwhile, in a case where a request for a drinking test was made under an illegal arrest, the demand for a drinking test is deemed illegal, and it is not reasonable to force the driver to comply with the demand for a drinking test so that it is deemed that the driver has a duty to comply with the demand for a drinking test in an illegal manner. Thus, it cannot be punished as a crime of non-compliance with a drinking test under Article 148-2 (1) 2 of the Road Traffic Act on the ground that the investigator refused the request (see Supreme Court Decision 2004Do8404, Nov.

2. A. The reasoning of the lower judgment and evidence duly admitted by the lower court: (1) Two police officers belonging to the Seongbuk Police Station were assaulted on May 29, 2012, 205: (200; (3) the Defendant was found to scambling the head of a female at the time and head of the Dongnam Expressway; (4) the Defendant was informed at any time, requesting the Defendant to accompany the Defendant to the Northern Police Station at any time at any time while investigating the instant violence; (2) one of the above police officers was asked by the Defendant to make a statement that the Defendant was driving on drinking; (4) the Defendant was asked by the Defendant for an additional police officer to take a alcohol test at around 06:10 on the same day; and (3) the Defendant refused to take a alcohol test at any time; (4) the Defendant’s request by a police officer for an additional police officer to take a alcohol test at any time; and (4) the Defendant was not required to take a alcohol test at any time; and (3) the Defendant’s request was not required by the police officer to take a alcohol test.

B. In light of the legal principles as seen earlier, the act of non-compliance with the measurement at the transport survey team is deemed to constitute an unlawful forced conduct, and thus, the act of attracting a defendant's arms, which the police officers refused to accompany at the entrance of the main office of the Seongbuk Police Station at the time, and moving into the transport survey team constitutes an illegal forced conduct. Thus, the request for a alcohol measurement from the transport survey team conducted under such illegal arrest is also illegal. Thus, the defendant cannot be punished as a crime of non-compliance with the alcohol testing even if he/she refused

In addition, in relation to the act of refusal to take measurements at a police box, the defendant was notified that he may freely leave the police station at any time, and such act was carried out under illegal arrest. However, in light of the following circumstances, the defendant cannot be deemed to have been carried out under the illegal arrest of the police station. However, the following circumstances revealed in the above facts: (i) the defendant was accompanied by the crime of assault with the police officer, namely, (ii) the defendant was forced to take a breath alcohol test due to the statement of the victimized female; (iii) the police officer did not have any fact of driving the police station; (iv) the police officer did not request a alcohol test; and (iii) the above police officer did not notify the defendant of the disadvantage caused by the failure to take measurements; and (v) the police officer did not prepare the documents following a non-compliance with the measurement, such as a report on detection of the driver by drinking; and therefore, (iv) the defendant cannot be deemed to have satisfied the aforementioned act of refusal to take a alcohol test to the extent that there is an objective and objective reason to deem that the defendant did not comply with the above act of refusal.

Therefore, the judgment of the court below is just for not guilty of the facts charged in this case, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the legality of voluntary act, or by neglecting the judgment on the non-compliance with measurement at the police box, which is an additional charge

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)