The defendant's appeal is dismissed.

1. The judgment of the court below which found the defendant guilty of the facts charged in this case is erroneous in matters of law such as misunderstanding facts or misunderstanding legal principles for the following reasons.

A. On June 5, 2017, at around 07:00 on June 5, 2017, the Defendant’s point of control over drinking driving of the instant case, there is a uncertainty in the official form in calculating the blood alcohol concentration by using the so-called dmark formula.

In addition, the defendant is likely to have remaining alcohol in the old mouth because he/she had seen water for the treatment of fluorry at that time, and there is a possibility that the alcohol remains in the old mouth. Since he/she divided fluoral and gluoral on June 4, 2017, the previous day, and immediately did not engage in physical activities because he/she had no physical activities due to the locking place, then he/she seems to have suffered considerable time that alcohol in the blood transfusion has not been dissolved or disappeared, it is deemed that the above dmark formula has not been applied.

B. Even if the blood alcohol concentration level is presumed in the above rare formula, the blood alcohol concentration level should be calculated on the basis of 31 minutes, which is the difference between 0.049% and 07:42 on the same day, from 07:11 to 07:42 on the date when the blood collection method was measured by the respiratory measurement method.

B. Because of an error in recording each point of view above, the difference in actual both sides cannot be ruled out to be less than 30 minutes, and in such a case, it is determined whether to drive alcohol on the basis of the above 0.049% without adding the volume of alcohol decomposition during blood.

However, the lower court determined that the Defendant’s blood alcohol concentration was 0.053% based on 42 minutes, which is the difference between the time when the blood driving was controlled and the time when the blood was measured by the blood gathering method, and recognized that the Defendant’s blood alcohol concentration was 0.053%.

(c)

According to the traffic control guidelines, when the measured person requests the collection of blood or objects to the result of the measurement, the driver in charge shall be the driver.