The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The Defendant’s point of time of erroneous determination of facts is not about 00:38 on July 27, 2019, but about 23:45 on July 26, 2019, which the lower court acknowledged. Since the Defendant’s blood alcohol concentration of 0.196% was measured during the blood alcohol concentration increase period, the possibility that the blood alcohol concentration at the time of the instant driving is much lower than 0.196% cannot be ruled out.

Nevertheless, the court below found the Defendant guilty of the facts charged of this case. The court below erred in misunderstanding of facts.

B. The lower court’s sentence of unreasonable sentencing (one year of imprisonment, two years of suspended execution, and forty hours of attending the compliance driving lecture) is too unreasonable.

2. The Defendant asserts that the final drinking point was around 21-22:0 on July 26, 2019. The blood alcohol concentration generally increased between 30-90 minutes and 90 minutes after drinking, resulting in a decrease of 0.08 to 0.03% per hour (average 0.015%) (see Supreme Court Decision 2005Do3904, Jul. 28, 2005) (see Supreme Court Decision 2005Do3904, Jul. 28, 2019). Even if the Defendant’s driving point was not around 00:38, July 26, 2019, the Defendant’s driving point was not around 00:38, but at around 23:45, July 26, 2019, the blood alcohol concentration was 0:043 (Smoking measurement) and the blood alcohol concentration was 9:200 percent after the date of alcohol measurement.

On July 27, 2019, the Defendant’s blood alcohol concentration measured by the pulmonary measurement method around 00:43, while the blood alcohol concentration measured by the pulmonary measurement method was 0.109%, the Defendant’s blood alcohol concentration measured by the blood collection method around 01:12 on the same day is 0.196%, and thus, it should be deemed that the Defendant’s individual circumstances led to the increase in the blood alcohol concentration differently from the ordinary person.

Although it is alleged to the effect that blood collection result cannot be trusted, considering the circumstance that, in the case of a measurement by a respiratory tester, there may be problems in accuracy and reliability of the measurement result based on the condition of the measurement instrument, measuring method, cooperation between the other party, etc., artificially in the process of collecting or testing blood.