The prosecutor's appeal is dismissed.

1. According to the summary of the grounds for appeal of this case, although it can be sufficiently recognized that the defendant was under the influence of alcohol by 0.103% at the time of driving of this case, the judgment of the court below which acquitted the defendant of the primary charges of this case is erroneous in misunderstanding of facts and misunderstanding of legal principles.

2. Determination

A. On June 5, 2019, around 21:30 on June 5, 2019, the Defendant driven a F rocketing car under the influence of alcohol concentration of about 0.103% at a section of about 300 meters from the front road of the “C” located in the Busan Youngdo, to the front road of the “E” located in D.

B. In a criminal trial, criminal facts ought to be recognized as strict evidence with probative value to the extent that the judge has no reasonable doubt. Thus, in a case where the prosecutor fails to prove to the extent that the defendant’s assertion or defense is inconsistent or uncomfortable, even if there are circumstances, such as suspicion of guilt should be determined in the interests of the defendant (see, e.g., Supreme Court Decision 2012Do231, Jun. 28, 2012). (ii) In a situation where it is impossible to determine whether the blood alcohol concentration measured at the time when driving was completed at a considerable time after driving, even if the blood alcohol concentration measured at the time when driving was completed exceeds the punishment standard, it cannot be readily concluded that the blood alcohol concentration at the time of actual driving exceeded the punishment standard.

Although there are differences for each individual, it is generally known that the blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest level, and then 0.08 to 0.03% per hour (average 0.015%) has decreased by 0.08 to 0.03% (average 0.015%). If the driving is completed during the rise period of the blood alcohol concentration, it is higher than the blood alcohol concentration actually measured.