피고인이 술에 취한 상태에서 자동차를 운전하였다고 인정할 만한 상당한 이유가 있어 경찰관으로부터 호흡측정 방식으로 음주측정에 응할 것을 요구받았음에도 음주측정기에 입김을 불어 넣는 시늉만 하는 방법으로 이를 회피하여 경찰관의 음주측정 요구에 응하지 아니하였다고 하여 도로교통법 위반(음주측정거부)으로 기소된 사안에서, 피고인은 오른쪽 안면 신경마비의 후유증으로 호흡측정기에 의한 음주측정이 심히 곤란한 상태에 있었음이 인정된다는 등의 이유로 무죄를 선고한 제1심판단이 정당하다고 한 사례

피고인이 술에 취한 상태에서 자동차를 운전하였다고 인정할 만한 상당한 이유가 있어 경찰관으로부터 약 38분간 5회에 걸쳐 호흡측정 방식으로 음주측정에 응할 것을 요구받았음에도 음주측정기에 입김을 불어 넣는 시늉만 하는 방법으로 이를 회피하여 경찰관의 음주측정 요구에 응하지 아니하였다고 하여 도로교통법 위반(음주측정거부)으로 기소된 사안이다.

The case affirming the judgment below holding that considering all the circumstances including the fact that it is difficult to view that the defendant was guilty of a crime of refusing to take a drinking test on the ground that, although the defendant acknowledged the fact of drunk driving, although he was able to find it difficult to conclude that the defendant was in a state of pulmonary measuring at the time when breath, considering the fact that the defendant consistently made it difficult to breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic breathic br.

Articles 44(2) and 148-2(1)2 of the Road Traffic Act (Amended by Act No. 15530, Mar. 27, 2018); Article 325 of the Criminal Procedure Act

Defendant

Prosecutor

Republic of Korea, Japan and 1 other

Attorney Choi Jong-young et al.

Ulsan District Court Decision 2017Ra2338 decided May 25, 2018

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

검사가 제출한 증거들에 의하면, 피고인은 경찰공무원의 거듭된 음주측정 요구에도 불구하고 호흡측정기에 숨을 불어 넣는 시늉만 하는 방법으로 이를 회피하여 정당한 사유 없이 음주측정에 불응한 사실을 인정할 수 있다. 그럼에도 불구하고 피고인에게 무죄를 선고한 원심판결에는 사실을 오인하거나 법리를 오해하여 판결에 영향을 미친 위법이 있다.

2. Determination

A. According to Article 44(2) of the Road Traffic Act, in a case where there is a reasonable ground to recognize that a driver has driven a motor vehicle under the influence of alcohol, police officers may take a breath test whether the driver is under the influence of alcohol, while the driver is obligated to comply with such a test, in a case where the breathr’s measurement is impossible or is extremely difficult to take a breath test due to reasons such as a driver’s physical disorder, etc., it cannot be demanded to take such a test. In this case, even though a police officer requests a breathr to take a breath test and did not put the breathr in the degree that the breathr’s breathr’s breath test would result in the occurrence of the breathr’s breath test, it cannot be deemed that the breathr test was not complied with

B. In full view of the following circumstances acknowledged by the evidence adopted by the court below pursuant to the above legal principles, the court below acquitted the Defendant of the facts charged in this case on the ground that it is difficult for the Defendant to prove that the Defendant was in a very difficult condition to breathesis due to breathosis on the right side at the time of the instant case, and that the Defendant was unable to breath measurement due to breathic breathic breathic breathic breathic breath, which led to the failure of the Defendant to properly breathic breathic b

① The Defendant consistently stated that, while recognizing the fact of drunk driving from an investigative agency to the lower court’s court, the Defendant was unable to conceal the pulmonary measuring instrument due to symptoms caused by overfluence, but could not be unsatisfed so far.

② According to the written appraisal by the lower court’s commission of physical examination of the Defendant, it is confirmed that the result of the negotisis test shows that the Defendant had symptoms of negotisis to the right, and thereby, there was an obstacle to the Defendant in measuring the negotisis for continuous 3 to 5 seconds. In addition, the appraisal has to be formed in order to put the negotisis into the pulmonary measuring instrument 3 to 5 seconds. In addition, in the case of the Defendant, it was stated that the Defendant showed symptoms that the negotisis was not formed to the extent that the legotisis was unsible due to the negotisissis.

③ According to the reply to fact-finding by the lower court to the National Health Insurance Corporation, the Defendant is recognized as having received medical treatment at one Council member on a multiple occasions due to the following: (a) around June 2009; (b) around May 2012; (c) around June 6, 2012; and (d) around January 2014; and (d) damage or disability to face viruses.

④ The Nonindicted Party, who was a police officer controlling the Defendant, tried to continue to stop pulmonary measuring instruments, rather than to stop the Defendant’s pulmonary measuring instruments. At that time, the Nonindicted Party stated that at that time, the Defendant was partially cut off or was extremely bad, and that there was no determination as to whether it was smaller. In light of the overall statement made by the Nonindicted Party, the overall statement made by the Nonindicted Party, specific statement details and attitude, etc., it is difficult to believe the Nonindicted Party’s statement that conforms

⑤ 검사가 피고인이 음주측정을 회피하는 모습이라고 제출한 사진의 영상(증거목록 순번 12번)은 단속 당시 피고인에게 호흡측정기에 의한 음주측정을 실시하는 모습을 촬영한 것일 뿐이고, 그 사진 하단에 수기로 기재된 내용은 당시 피고인을 단속한 경찰공무원의 추측이나 판단을 기재한 것에 불과하므로, 이것만으로는 피고인이 이 사건 당시 경찰공무원으로부터 음주측정을 요구받고도 호흡측정기에 숨을 내쉬는 시늉만 하거나 음주측정 수치가 나타날 정도로 숨을 제대로 불어 넣지 아니하여 음주측정을 거부하였다고 인정하기에 부족하다.

6. The images of a photograph (Evidence No. 18) that the Defendant was able to take a pulmonary test by a pulmonary tester (Evidence No. 18) are taken after two months from the control of the instant case, and the Defendant was investigated by the police, thereby preventing the Defendant from entering his right part of the Defendant’s body and detecting the pulmonary tester. It cannot be readily concluded that the Defendant’s physical condition at the time of control was able to take a pulmonary test by the pulmonary tester.

C. We examine the above reasoning of the court below in comparison with the evidence adopted by the court below, and consider the following reasons in addition to the above reasons presented by the court below, we accept the judgment and conclusion of the court below as just, and there is no error of misconception of facts or misapprehension of legal principles as alleged by the prosecutor. The prosecutor's above argument is without merit.

1) Although the Defendant had been under the influence of pulmonary testing during around 2000, the Defendant had been under the influence of pulmonary testing, considering that the instant crime occurred after 17 years thereafter, the Defendant was a female of the latter half of 50 at the time, and that the Defendant was under intensively treated as to the damage to face and disability from around 2009, it is difficult to readily conclude that the Defendant’s control record alone by the Defendant’s control over drunk driving was in a state that pulmonary measuring instruments could have been measured at the time of committing

2) At the time of regulating drunk driving of the instant case, the Defendant talked with the police officer in charge of the instant police officer, and attempted to prevent him/her from entering the right side and to stop him/her from taking a drinking-free measuring instrument even though he/she did not require the police officer in charge to do so. Therefore, it is difficult to deem the Defendant to have a criminal intent to refuse to take a drinking-free test solely on the evidence submitted by the prosecutor.

3. Conclusion

Since the prosecutor's appeal is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

Judges Kim Hyun-hwan (Presiding Judge)