The judgment of the court below is reversed.

Defendant shall be punished by a fine of one million won.

The above fine shall not be paid by the defendant.

Summary of Grounds for Appeal

On August 19, 2012, the Defendant measured the blood alcohol concentration to the pulmonary measuring instruments on the same day as the date when 17 minutes passed from the date when the Defendant was controlled as a drunk driving, and the numerical value was 0.069%.

Since the blood alcohol alcohol is in the stage of increase in the numerical value as before the Defendant measured the blood alcohol content after control, it cannot be readily concluded that the blood alcohol content is not less than 0.050% at the time of regulating it, and there is no evidence to otherwise recognize it.

In addition, the investigative agency was able to measure the blood alcohol concentration of the defendant immediately after the control of the defendant, but there was an error of delay in the measurement without any justifiable reason, and since the defendant was recognized as a higher drinking alcohol level and punished, it is in violation of the principle of responsibility under the criminal law.

Therefore, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

Before the judgment on the grounds for appeal by the Defendant’s ex officio, the prosecutor applied for permission to amend the indictment by changing “0.069% of blood alcohol concentration” from the facts charged in the instant case into “0.050% or more of blood alcohol concentration” in the judgment of the court. Since the subject of the judgment was changed by this court’s permission, the judgment of the court below was no longer maintained.

However, even if there are such reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.

In a situation where it is impossible to determine whether the blood alcohol level at the time of driving under the law related to determination of mistake and misapprehension of the legal principles is an increase in blood alcohol level, or when it is difficult to determine whether the blood alcohol level at the time of driving under the rule of law, even if the blood alcohol concentration measured at the time when the driving is completed, the blood alcohol concentration at the time of actual driving is somewhat excessive.