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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Of the facts charged in this case, there is an error of misunderstanding of facts and misunderstanding of legal principles that found the defendant guilty of refusing to measure drinking alcohol although there was no reasonable ground to recognize that the defendant was driving under the influence of alcohol, or by misunderstanding of legal principles that affected the conclusion of the judgment.
B. The sentence imposed by the court below on the defendant (one year and six months of imprisonment and fine of 300,000 won) is too unreasonable.
2. Determination
A. As to the assertion of mistake of facts and misapprehension of legal principles, the crime of non-compliance with the measurement of alcohol under Article 148-2 (1) 2 of the Road Traffic Act is established when a person who has reasonable grounds to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 44 (
In light of the provisions of Article 44 (2) of the Road Traffic Act, if there are reasonable grounds to recognize that a driver has driven a motor vehicle while under the influence of alcohol and it is necessary to confirm whether a driver has driven a motor vehicle, etc., then it is evident that a police officer cannot confirm whether a driver has driven a motor vehicle by means of an ex post facto alcohol test, unless it is clear that a police officer may request a driver to measure the alcohol, and if the driver fails to comply with it, the crime of non-compliance with a alcohol test under Article 148-2 (1)
(See Supreme Court Decision 2005Do9624 Decided January 27, 2006, and Supreme Court Decision 2014Do10518 Decided December 11, 2014, etc.). In full view of the following circumstances acknowledged by the lower court and the evidence duly admitted and investigated by the lower court, there was a reasonable reason to recognize the driving of a motor vehicle under the influence of alcohol at the time, and the police officer in charge is the Defendant to clarify whether the motor vehicle was driven under the influence of alcohol at the time.