The judgment of the court below is reversed.

The defendant is not guilty. The summary of the judgment against the defendant shall be published.

1. In light of the facts that the defendant's blood alcohol concentration prior to the time of the accident is 0.062% when the defendant's operation is terminated, and the defendant's behavior and house are 0.062% before the time of the accident, the court below's decision that there was no evidence to find that there was a situation above 0.05% of the blood alcohol concentration at the time of the accident of this case is erroneous in the misapprehension of facts.

2. Determination

A. In the trial of ex officio determination, the prosecutor applied for changes in indictment to change the blood alcohol concentration “0.092%” among the facts charged in the instant case to “0.062%” through lawful procedures, and this court permitted changes in the subject matter of the trial. As such, the judgment of the court below was no longer maintained.

However, despite the above reasons for ex officio destruction, the prosecutor's assertion of mistake is still subject to the judgment of the court, and this is examined.

B. 1) Determination of the assertion of mistake of facts in the instant facts charged is a CM5 vehicle driver owned by the Defendant. The Defendant, while under the influence of alcohol at around 20:26 on November 8, 2013, at around 0.062% of blood alcohol level, driven the said vehicle over about 5km from the roads front of the Gwangju Mine Industry to the roads front of the Gwangju Northern apartment. (2) In the circumstances where it is impossible to determine whether the blood alcohol level measured at a considerable time after the completion of driving is the rise of blood alcohol level, even if the blood alcohol level measured at the point of time after the completion of driving has exceeded the punishment standard, it cannot be concluded that the blood alcohol level at the time of actual driving exceeded the punishment standard.

Although there are differences for each individual, blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest level, and thereafter, approximately 0.08% and 0.03% per hour (average 0.015%) are reduced.