[1] In a case where an investigative agency collects the blood of a defendant in violation of due process of law, whether the inquiry report, etc. based on the request for appraisal is admissible as illegally collected evidence (affirmative)

[2] The degree of proof as to the facts constituting a premise for the formal application in cases where a blood alcohol concentration is calculated by using the Badmmark formula (= strict proof)

[1] In the premise that the collection of blood is a compulsory disposition against a person's body, it is unlawful for an investigative agency to collect blood from the suspect without the consent of the suspect or a judge's prior or ex post facto warrant. As such, it is not admissible as illegally collected evidence.

[2] If the blood or respiratory level of alcohol can be measured immediately after a drunk driving, it can be presumed that the blood alcohol level at a specific point of time can be measured as a result of the calculation by using the Badmark formula. However, in a case where an empirical rule, such as science and engineering, is used to find out the existence of the elements constituting an offense, strict proof is required as to individual and specific facts constituting the premise for the application of the rule of law. In the case of the Badmark formula, the materials for the application of the rule need to be proved, such as drinking volume, drinking time, body body weight, and level of normal drinking. Therefore, strict proof is needed to recognize such premise.

[1] Articles 215, 216, and 308-2 of the Criminal Procedure Act / [2] Article 307 of the Criminal Procedure Act, Article 44 of the Road Traffic Act

[1] Supreme Court Decision 98Do968 delivered on September 3, 1999 (Gong1999Ha, 2136) / [2] Supreme Court Decision 99Do541 delivered on November 10, 200 (Gong2001Sang, 75) Supreme Court Decision 2002Do6762 Delivered on April 25, 2003 (Gong2003Sang, 1383) Supreme Court Decision 2008Do5531 Delivered on August 21, 2008 (Gong2008Ha, 1324)

Defendant

Prosecutor

Civil Security

Attorney Yoon Tae-won

Daegu District Court Decision 2008 High Court Decision 478 decided June 11, 2009

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The collection of blood can be conducted with the consent of the defendant's family members, and the request for a warrant of blood collection is not unlawful even if it is not issued with the prior and subsequent warrant because the effectiveness of the request is doubtful or the grounds are unclear. However, in the instant case, the police collected blood with the consent of the defendant's spouse, and thus, did not collect blood through legitimate procedures, the court below judged that the forced collection of blood to the defendant cannot be used as evidence for unlawful collection of evidence. Accordingly, the court below acquitted the defendant as to the instant charges. Accordingly, the court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of

2. Summary of the facts charged in this case

A. Main facts charged

At around 22:50 on July 11, 2008, the Defendant driven (vehicle number omitted) New Franchising car owned by the Defendant on the street of approximately 250 meters away from the 25th national highways located in the Gu and Pyeong Pyeong Port in the Gu and Sinsi in the state of alcohol of 0.104%.

B. Preliminary charges

At around 22:50 on July 11, 2008, the Defendant driven a new national highway No. 25 (No. 250 meters away from the intersection intersection of Daegu Road), which is located in the old Sinsim Hyeong (No. 250 meters away from the intersection of the road), under the influence of alcohol concentration of 0.058%.

3. The judgment of the court below

A. Judgment on the main facts charged

The court below found that the evidence consistent with the facts charged in this case is evidence that the defendant's appraisal request report, the investigation report based on it (Evidence No. 17), and the report on detection of the main driving (Evidence No. 18), but according to the witness non-indicted 1's legal statement and the statement of the circumstantial statement in the situation of the main driving driver's statement, the defendant could not make a statement immediately after the accident, and the defendant could not make a statement because he was sent to the hospital under the circumstance that he could not drive his hand and the situation (in light of Article 44 (3) of the Road Traffic Act, it cannot be said that the non-indicted 1, the defendant's wife cannot give consent to forced collection of blood to the defendant). In this case, in order for the investigative agency to collect blood subject to compulsory disposition, the judge's warrant should be issued in accordance with Article 215 of the Criminal Procedure Act in order that the investigative agency received a warrant in advance or ex post, there is no evidence to acknowledge the fact that a warrant was issued. The same applies to the witness's statement based on the facts charged.

B. Judgment on the ancillary charges

The court below, on August 7, 2008, determined that Non-Indicted 2, who was the defendant's drinking together with the defendant, she her drinking together with the defendant, Non-Indicted 3, and Non-Indicted 2, her drinking together with the defendant on August 7, 2008, she did not drink only 1 remaining drinking, and Non-Indicted 3 her drinking divided into drinking and drinking together with Non-Indicted 3, and the defendant stated that Non-Indicted 3, who was the head of an accident restaurant, her drinking together with the defendant and Non-Indicted 2, her drinking while Non-Indicted 3, who was the police station, her drinking together with the defendant, stated that Non-Indicted 2, in addition to Non-Indicted 1, her drinking, she was her drinking to the extent of 400,000 and her drinking together with the defendant's statement about the amount of drinking on the day of the accident, and that there was no objective evidence that the defendant made the defendant's statement about the amount of drinking and drinking.

On the other hand, the court below, on the premise that there is a strict proof of facts as to the above facts, applied 0.86 to the above dmark official in order to estimate the blood alcohol concentration. However, there is insufficient material to deem that the physical conditions, etc. of the defendant are appropriate to apply the above dmark acceptance with respect to the defendant's body, among the reliable statistical data already known, the above 0.95% of the defendant's blood alcohol concentration is calculated by applying the above dmark acceptance related to the defendant's body instead of the above 0.86 instead of the above 0.0529% [=327m x 0.195 (the degree of alcohol content) x 0.794g/m 190 (the weight of alcohol content) x 70.95 x 10.00 x 10% of the average alcohol concentration of the defendant's body so that it can not be found that the maximum alcohol concentration of the defendant's body is calculated in the same way as the above 0.

4. Judgment of the court below

A. Judgment on the main facts charged

Examining the facts-finding and judgment of the court below in comparison with the records, it is unlawful for the investigative agency to collect blood from the defendant without the consent of the defendant or the written request for appraisal request by the judge, etc. on the premise that the collection of blood is a compulsory disposition against human body, and thus, it is not admissible as evidence for unlawful collection. The court below's decision that acquitted the primary facts of this case is just and it is not erroneous in the misunderstanding of facts as otherwise alleged by the prosecutor.

B. Judgment on the ancillary charges

If it is not possible to measure the blood alcohol level from an actor's blood or breath immediately after a drunk driving, the blood alcohol level can be presumed as the result of the calculation by using the Badmark formula. However, in the event that the empirical rule, such as scientific and public knowledge, is used to find out the existence of a crime constituent element, a strict certification is required for individual and specific facts constituting the premise for the application of the rule of law. In the case of the Badmark formula, the data for the application of the rule requires a strict proof (see, e.g., Supreme Court Decision 9Do128, Jun. 27, 2000).

According to the evidence duly adopted and examined by the court below, although the defendant's drinking volume, which is the premise for the application of the Badmark formula, is different from the defendant's statement on August 7, 2008 and the defendant's statement on September 2, 2008, the police should reach the 10th of May 6, 2009 when the accident of this case occurred after the accident of this case and the 10th of May 6, 2009 after the accident of this case, and the 2, 327mm of the remaining 5mm of the defendant's total math of mathy, which is the basis for the application of the Madmark formula of this case, it can be recognized that the defendant confirmed the Madmark as the quantity of Madmon.

However, the above circumstance alone cannot be deemed to be that the defendant objectively proves the quantity of drinking, and therefore, the court below's decision not guilty of the conjunctive facts charged in this case is just and acceptable, and there is no error of mistake of facts as alleged by the prosecutor in the judgment of the court below.

5. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jong-dong (Presiding Judge)