The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.

Summary of Grounds for Appeal

Defendant

The violation of the Road Traffic Act in misunderstanding of facts: it is difficult for the defendant to have made a statement about the drinking volume at an investigative agency to be reliable, and it is difficult to view that the blood alcohol concentration was sufficiently proven due to the incorrect application of the Badmark formula.

In the case of property damage: The defendant did not have the intent to commit the property damage, since he did not have the intention to commit the crime of property damage, since he would bring CCTV to the person in charge of the guard room and the president of the entertainment tavern in the instant building.

In addition, even if the criminal intent is recognized, illegality is excluded as an act conducted with the presumption consent of the victims.

Unfair sentencing: The sentence of the lower court against the Defendant (the imprisonment for eight months, the suspension of the execution of two years, the participation in the compliance driving lecture 40 hours, the community service 120 hours) is too unreasonable.

Prosecutor: The lower court’s sentence against the Defendant is too uneasible and unreasonable.

If the blood alcohol level can be measured by examining the driver's blood and respiratory level immediately after driving in the case of a drunk driving, the blood alcohol level at the time of driving can be estimated by using the so-called Hemmark formula as a result of calculating the veterinary method. However, in the case of using the empirical rule such as scientific public awareness to find out the existence of the elements of crime, it is necessary to provide strict proof as to individual and specific facts which are the premise of applying the law.

In the case of the Badmark formula, the quantity, drinking time, body weight, etc. of alcohol taken in as data for its application are required. Therefore, strict proof is required to recognize such premise.

In addition, the presumption method of blood alcohol concentration according to the Badmark formula is the highest blood alcohol concentration due to the absorption and distribution of alcohol. (See Supreme Court Decision 9Do128, Jun. 27, 2000).