Requirements for the establishment of the crime of non-compliance with the measurement of alcohol under the amended Road Traffic Act of January 5, 199

Article 107-2 (2) of the Road Traffic Act provides that a person who has reasonable grounds to recognize that he/she is under the influence of alcohol is under the influence of alcohol and fails to comply with a measurement by a police officer under Article 41 (2) of the same Act. Article 41 (2) of the same Act provides that when a police officer deems it necessary for traffic safety and prevention of danger or when there are reasonable grounds to recognize that he/she has driven a motor vehicle under the influence of alcohol in violation of Article 107-2 (1), the driver may determine whether the driver is under the influence of alcohol and the driver shall comply with such a measurement by the police officer. Thus, even if it is not necessary for traffic safety and prevention of danger, it is reasonable to recognize that the driver has driven a motor vehicle under the influence of alcohol, considering the objective circumstances at the time of the request for a measurement of alcohol, unless it is evident that it is impossible to confirm whether the driver is under the influence of alcohol, a police officer may request the driver concerned to take a measurement of alcohol, and if the driver refuses such a measurement, it constitutes a non-compliance with Article 107-2 (2).

Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act

Supreme Court Decision 92Do3402 delivered on May 27, 1993 (Gong1993Ha, 1941) Supreme Court Decision 94Do1562 delivered on September 27, 1994 (Gong1994Ha, 2910) Supreme Court Decision 94Do2172 delivered on October 7, 1994 (Gong194Ha, 3024)

Defendant

Prosecutor

Changwon District Court Decision 96No1038 delivered on November 6, 1996

The part of the judgment of the court below concerning the violation of the Road Traffic Act (non-compliance with the measurement) shall be reversed, and that part of the case shall be remanded to the Changwon District Court Panel Division.

The prosecutor's grounds of appeal are examined.

Article 107-2 (2) of the Road Traffic Act provides that a person who has reasonable grounds to recognize that he/she is under the influence of alcohol is under the influence of alcohol and fails to comply with a measurement by a police officer under Article 41 (2) of the same Act. Article 41 (2) of the same Act provides that when a police officer deems it necessary for traffic safety and prevention of danger or when there are reasonable grounds to recognize that he/she has driven a motor vehicle under the influence of alcohol in violation of Article 107-2 (1), the driver may determine whether the driver is under the influence of alcohol and the driver shall comply with such a measurement by the police officer. Thus, even if it is not necessary for traffic safety and prevention of danger, it is reasonable to recognize that the driver has driven a motor vehicle under the influence of alcohol and it is necessary to confirm the driver's driving under the influence of alcohol, unless it is clear that the police officer cannot confirm whether the driver is under the influence of alcohol by a alcohol test after the latter, and if the driver fails to comply with such a measurement, the crime of non-driving under Article 107-2 (2).

According to the records, around 20:00 on March 26, 1996, the defendant was driving a motor vehicle while driving the motor vehicle with no driver's license from around 22:00 to around 22:00, while driving the motor vehicle at a restaurant located in the city of Changwon-si, Changwon-si, and driving the motor vehicle with no driver's license from around the main points in the vicinity, and driving the motor vehicle with the same house from around 22:20 to around 22:20, the road intersection, as cited in the judgment of the first instance that the court below accepted, divided personal and material damage caused by occupational negligence, and driving the motor vehicle with no driver's license and drinking driving. However, it is difficult to view the defendant's appearance of the motor vehicle without a driver's license and drinking driving without a driver's license and without a driver's license and without a driver's license and without a driver's license until the time of the above traffic accident, and it is difficult to find the defendant's appearance of the motor vehicle after drinking test by a police officer.

Nevertheless, the court below found the defendant not guilty of the charges concerning the crime of non-compliance with the measurement of alcohol under Article 107-2 subparagraph 2 of the Road Traffic Act on the ground that the defendant's request for the measurement of alcohol to a police officer after the driving of his/her vehicle is not sufficient enough time to recognize that the defendant driven in a drinking state, and thus, it is not erroneous in the misapprehension of legal principles as to the requirements that a police officer can take a alcohol test to a driver under Article 41 (2) of the Road Traffic Act, which affected the conclusion of the judgment.

3. Therefore, the part concerning the crime of violation of the Road Traffic Act among the judgment below is reversed, and that part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)