(영문) 부산지방법원 2008.4.18.선고 2008노657 판결

The defendant asserts that arrest of a flagrant offender of this case is illegal arrest who fails to comply with due process, and even if the defendant did not comply with a police officer's request for measurement of drinking, it cannot be punished as a crime of violation of the Road Traffic Act. Thus, the judgment of the court below which found the defendant guilty of the violation of the Road Traffic Act.

2. Determination

(a) The fact that a driver has driven a motor vehicle although there is no need for the traffic safety and prevention of danger;

A drinking test conducted solely on the ground that there is a considerable reason is meaningful as an investigation procedure to collect evidence of the criminal act of driving a driving a driving a driving a driving a driving a driving a driving a driver. To take a drinking test above, the compulsory driving conducted without disregarding the procedure under the Criminal Procedure Act pertaining to compulsory measures under investigation is an illegal arrest. In a case where a drinking test is requested under such illegal arrest, it is inappropriate to evaluate the legitimacy of a drinking test request on the ground that the illegal arrest for the purpose of collecting evidence of the criminal act of driving a driving a driving a driving a driving a driving a driving a driving a driver, and thus, it is difficult to deem that an illegal drinking test request was made after considering the series of processes as a whole. Thus, even if there is a considerable reason to recognize that a driver driving a driving a driving a driving a driving a driving a driver, deeming the driver as having a duty to comply with the request of a police officer to take such illegal drinking test, and thus compelling the driver to comply with it, it is unfair to punish him as a violation of the Road Traffic Act concerning the refusal of drinking (see Supreme Court Decision 2004Do484, 20006.

B. We examine whether there was a legitimate request for alcohol measurement in this case. Since the court below's decision, the defendant stated that he would receive medical treatment from a police officer called to the hospital within 119 first time after the occurrence of a traffic accident. However, the police officer stated that the defendant would get off from the vehicle and forced the defendant to go on to the expressway patrol office. At the time, B, the police officer who called to the above patrol office, stated that the defendant was accompanied by the defendant in the court of the court of the court below that the defendant was accompanied by the toilet at the time of the above patrol office, and it is clear that the defendant's behavior was not voluntary behavior at the time. Meanwhile, C and B, the police officer of the court of the court below, stated that the defendant was informed of the grounds for and the right to appoint a defense counsel at the time of arresting the defendant at the court of the court of the court below. However, it is difficult to believe that each of these statements did not coincide with the point of time of time or the person who notified it, and thus, it cannot be acknowledged that the defendant did not have any legitimate evidence for arrest as to the defendant.

C. Nevertheless, the lower court found the Defendant guilty of the facts charged of this case, which erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it shall be sold again as follows

The summary of the facts charged in the instant case is that the Defendant did not comply with the alcohol alcohol measurement conducted by the slope B belonging to the high speed patrol unit A zone, which was requested by the Defendant, at the office of the expressway patrol unit located in Busan around April 6, 2007, on the grounds that there are reasonable grounds to recognize that the Defendant driven a motor vehicle under the influence of alcohol.

The above facts charged constitute a case where there is no proof of a crime as seen in the above 2.3, and thus, the judgment of innocence is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act.