2011No1895 Violation of the Road Traffic Act (Drinking)

(************************).

Residence omitted

Place of Registration omitted

Prosecutor

Mazyn-ray

Attorney** (Korean Pharmacopoeia)

Daegu District Court Decision 2010Gohap3703 Decided May 18, 2011

September 20, 2011

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,500,00.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal (misunderstanding of facts);

Although the Defendant measured the blood alcohol level with the respiratory measuring instruments, the Defendant demanded a measurement of the blood alcohol level by the method of collecting blood for three hours after the point of time when 0.053% had been found to have been 0.053%, such demand cannot be deemed to have been justifiable. Moreover, as long as the point of time when the blood sampling method was measured by the said method was 3 hours after the respiratory measuring instrument at the time when the first blood alcohol level was measured, it cannot be deemed that the said blood alcohol level was 050% or more at the time when the Defendant driven. Nevertheless, the lower court erred by misapprehending the legal doctrine that acquitted the Defendant of the facts charged in this case, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

On September 24, 2010: around 20: (a) the Defendant was under the influence of alcohol with 0.053% of blood alcohol level 0.053% ********************** *** ** her driving on the front road of the citizen center located in the Gu Seo-gu Incheon-ro 2 in Daegu-gu.

B. The judgment of the court below

The court below found the Defendant not guilty of the charges of this case on the following grounds: (i) the Defendant conducted a breath measurement by the breathr and the blood alcohol level of 0.053% as indicated in the facts charged; (ii) the breathr measurement by the breathr was conducted on September 25, 2010; and (iii) the breathr measurement by the breathr was conducted on September 28, 2010; and (iii) the breathr measurement by the breathr was conducted on September 25, 2010; and (iv) the accuracy and reliability of the measurement results can be at issue depending on the condition of the measuring instrument, measuring method, and the degree of cooperation between the other party.

C. Judgment of the court below

The measurement conducted to identify whether a police officer is under the influence of alcohol under Article 44 (2) of the Road Traffic Act shall be understood as a measurement method, i.e., a respiratory measuring method which objectively converts the degree of the alcohol from taking the respiratory test.

On the other hand, it is limited to a time close to the point when a police officer seeks confirmation upon presenting the result of the pulmonary measurement to a driver. (According to the National Police Agency's traffic control guidelines, when a driver is dissatisfied with the result of the pulmonary measurement, the driver shall obtain consent from the driver and request the appraisal of blood if he/she is dissatisfied with the result of the pulmonary measurement. On the other hand, with respect to a driver who fails to comply with the request for the pulmonary measurement at least three times more than 10 minutes of the disadvantage caused by the refusal to comply with the request for the pulmonary measurement, i.e., refusal of measurement when 30 minutes of the first request for the pulmonary measurement, i.e., when he/she refuses the pulmonary measurement at least 30 minutes of the first request for the pulmonary measurement. In light of the above treatment guidelines, it can be regarded as a standard within a considerable distance of time from the time when he/she seeks confirmation of the pulmonary measurement to the point 30 minutes of time).

In addition, according to the general medical view, the blood alcohol concentration from 30 minutes after drinking to 90 minutes after drinking so that the blood alcohol concentration has reached the highest value after 90 minutes after drinking, and the blood alcohol concentration has decreased from the next.

In light of the above legal principles and medical opinions, the court below examined all the facts revealed in the records of this case including the evidence lawfully examined. ① On September 24, 2010, the defendant 200 driving around 21:3: 21: 33: 053% of blood alcohol level at the time when he was controlled, and the defendant confirmed the above blood alcohol level at 0: 2. The defendant confirmed the blood alcohol level and signed the report on the main driver's exposure; ② The defendant was given the defendant the right to request blood collection to the 1st Gyeongbu Police Station of Daegu, Police Station of Traffic Safety after checking the above blood alcohol level at 0: 20: 20: 3: 5% of blood level from the above point of view to the point of view that blood collection method might increase, and 2: 3:5% of blood level from the above point of view to the point of view to the point of view that the above 2nd 2nd 6th 2nd 6th 20-hour level of blood alcohol level.

As can be seen, the time when the defendant demanded a measurement of blood collection by presenting the result of the breath test, and the time has passed since the police officer, including the above 200 hours before seeking confirmation. The reason why the above time has passed is because the police officer, upon the defendant's request, failed to make a decision on the method of blood collection which is a compulsory procedure due to concerns that the defendant could suffer a higher level of blood alcohol level even though the police officer, at any time by presenting consent to the collection of blood at a nearby hospital by presenting consent to the defendant, such as the above 200s request for the measurement of blood collection. Thus, the defendant's request for blood collection cannot be deemed as a legitimate demand within a considerable range of time (the defendant did not err by the police officer, and it is difficult to accept the above change in legal statement of the witness at the court below in light of the witness statement at the court below).

In addition, the police officer's measurement by blood collection method was conducted because the police officer did not refuse the above demand of the defendant. Accordingly, the blood alcohol concentration was measured by 026%. However, the time of measurement was about three hours after the police officer sought confirmation of the result of the respiratory measurement as above, and the blood alcohol concentration was found to have considerably decreased during that time. Thus, the above 026% of the blood alcohol concentration at the time of the control of the defendant was found to have been less than 050% because the blood alcohol concentration at the time of the control of the defendant was found to have been less than 0.05% because the blood alcohol concentration at the time of punishment (the defendant at an investigation agency September 20, 201).

24. 20: from 00 to 210: 21: The defendant stated that the degree of breath alcohol was breath from 20 to 21:0. The defendant's blood alcohol level level reached the highest level at 22:40 on the same day as the defendant's last drinking point 21 to 90 minutes. Thus, even if the defendant's blood alcohol level decreased from that point of time, the point of time when the blood alcohol level measured by blood collection method at the defendant's demand is 22:40 minutes later than the above 1:48 minutes later).

According to the above circumstances, even if considering the circumstance that the result of the Defendant’s pulmonary measurement of blood alcohol level by the pulmonary measuring instrument does not exceed 0.053% of the blood alcohol level by 0.053% of the blood alcohol level, which is the standard subject of punishment, and considering the time and time of drinking, the time for driving, and the possibility of error arising in the process of specifying the quantity of alcohol, the credibility of the result of the measurement of blood alcohol level by the pulmonary measuring instrument cannot be readily denied, and no objective circumstance exists to deem that the result of the measurement of the above blood alcohol level by the pulmonary measuring instrument was higher than the Defendant’s actual alcohol level.

Ultimately, as stated in the facts charged in this case, the defendant can sufficiently recognize the fact that he drives a vehicle while under the influence of alcohol 0.053% as stated in the facts charged in this case, and unlike this, the court below acquitted the defendant of this case on the facts charged in this case, by misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

On September 24, 2010: (a) the Defendant was under the influence of alcohol on September 21, 201: around 20: 0.053% of blood alcohol level 0.053%; (b)**************** * * * 1 km down of the citizen center in the middle-gu Incheon Metropolitan City on the front road of apartment.

Summary of Evidence

1. Statement of the police interrogation protocol of the accused in part of the police interrogation protocol (each time when the accused breath of alcohol, the breath measurement by the breath measuring instrument of the accused, and the measurement of the breath of alcohol by the method of blood collection, etc.); and

1. Legal statement of the lower court witness;

1. Descriptions of the report on detection of the driver and the report on the circumstantial statement of the driver; and

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 148-2 subparag. 1 and 44 (1) of the Road Traffic Act (the selection of fines and the grounds for sentencing to be considered below, etc.)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing under Article 334(1) of the Criminal Procedure Act lies in the defendant's objection to the result of the measurement of alcohol level up to the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the trial of the court of the trial of the trial of the trial of the trial of the case.

Judge Sok-young

Judges Park Jae-min

Judge Lee Hong-soo