[1] The credibility of the blood alcohol concentration measurement conducted by the pulmonary tester while the breath in a state where the breath in question was not part of his/her equipment

[2] In a case where the blood alcohol concentration measured by the respiratory tester without disregarding the Defendant’s demand to change his/her opportunity to recover from his/her place of suffering, the case holding that it cannot be readily concluded that the Defendant was driving under the influence of alcohol above 0.05% at the time when he/she was under the influence of alcohol

[1] The measurement of the blood alcohol concentration by the respiratory measuring instrument is conducted by measuring the pulmonary measuring instrument so that the alcohol concentration by the pulmonary measuring instrument can not be readily concluded to be the same as the blood alcohol concentration by the pulmonary measuring instrument without the pulmonary measuring instrument being able to be measured, and thus, it cannot be ruled out that the blood alcohol concentration by the pulmonary measuring instrument alone cannot be readily concluded to be the same as the blood alcohol concentration by the pulmonary measuring instrument, or that the pulmonary measuring instrument measured the alcohol content by the pulmonary measuring instrument with the pulmonary alcohol concentration when the pulmonary measuring instrument does not have a considerable time from the final alcohol time, or when the pulmonary measuring instrument measured the blood content by the pulmonary measuring instrument with the pulmonary air discharged from the waste.

[2] In a case where the blood alcohol concentration measured by the respiratory tester without disregarding the Defendant’s demand to change his/her opportunity to recover from his/her place of suffering, the case holding that the Defendant cannot be readily deemed to have driven under the influence of alcohol above 0.05% at the time when he/she was under the influence of alcohol

[1] Articles 41(1) and 107-2 subparag. 1 (see current Article 44(1) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) / [2] Article 41(1) (see current Article 44(1)), Article 107-2 subparag. 1 (see current Article 150 subparag. 1) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005), Article 308 of the Criminal Procedure Act

Defendant

Prosecutor

Cheongju District Court Decision 2005No416 decided September 14, 2005

The appeal is dismissed.

The grounds of appeal are examined.

Measurement of the blood alcohol concentration by the pulmonary measuring instrument is conducted by measuring the pulmonary measuring instrument so that the alcohol concentration by the pulmonary measuring instrument, which is melting in blood, is emitted through the pulmonary air when it passes through the waste, so long as a considerable time has not passed from the final drinking time, or when the pulmonary measuring instrument uses telim, earth, stoves, dental steel, oral hecoin, oral mouth with alcohol ingredients, and blood on the upper part, etc., are measured together with the pulmonary air discharged in the waste, the pulmonary measuring instrument’s concentration is higher than the actual blood alcohol concentration. Thus, it cannot be readily concluded that the blood alcohol concentration by the pulmonary measuring instrument without putting the pulmonary measuring instrument into the body, or it cannot be ruled out that the blood alcohol concentration by the pulmonary measuring instrument can be measured higher than the blood alcohol concentration by the pulmonary measuring instrument.

In light of the circumstances indicated in the record, in this case, where the pulmonology measured by the respiratory tester was 0.05%, and the result of the blood alcohol concentration by the respiratory tester of this case, which was committed without disregarding the Defendant’s demand, cannot be readily concluded that the Defendant driven under the influence of alcohol with a blood alcohol concentration exceeding 0.05% at the time, and there is no other evidence to prove otherwise, the lower court acquitted the Defendant of the facts charged in this case with the same purport.

As above, in the case where the results of blood alcohol concentration by the respiratory measuring apparatus of this case are not reliable, the remaining grounds of appeal do not affect the conclusion of the judgment, and it is obvious that the defendant asserted a mistake of facts with the grounds of appeal, there is no reason to believe that the court below acquitted the facts charged of this case from the scope of the appellate court's judgment.

All of the grounds of appeal cannot be accepted.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)