[1] Requirements for establishing the crime of non-compliance with the measurement of alcohol under Article 107-2 Item 2 and Article 41 (2) of the Road Traffic Act

[2] Criteria for determining whether there are reasonable grounds to recognize that a person was driving under drinking

[3] The case holding that in a case where a police officer did not comply with a request for a drinking test by a police officer for a drinking test after drinking alcohol or drinking alcohol after about five hours from the end of the driving under the circumstances of a witness who had observed drinking and drinking alcohol by the defendant, the crime of non-compliance with a drinking alcohol test under the Road Traffic Act is established

[1] The crime of non-compliance with a drinking test under Article 107-2 subparagraph 2 of the Road Traffic Act is established when a person who has reasonable grounds to be recognized as being under the influence of alcohol fails to comply with a test by a police officer under Article 41 (2) of the same Act. In light of the objective circumstances at the time of the request for a drinking test, in case where there are reasonable grounds to recognize that a driver has driven a motor vehicle under the influence of alcohol, and it is not clear that it is impossible to confirm whether a driver has driven a motor vehicle under the influence of alcohol, then a police officer may demand a drinking test after the drinking test, and if a driver fails to comply with it, a police officer's non-compliance with a drinking test under Article 107-2 subparagraph 2 of the same Act is established.

[2] Whether there is a reasonable ground to recognize that a driver was driving a motor vehicle under the influence of alcohol shall be determined by comprehensively taking into account the objective circumstances such as the appearance, attitude, and behavior of the driver at the time of the request for a breath test. In particular, after the completion of the driver's operation, objective circumstances such as the driver's appearance, attitude, and sking driver's behavior, kind and quantity of drinking alcohol, and the time and place distance from the completion of the breath test shall be determined after considering the objective circumstances.

[3] The case holding that in a case where a police officer did not comply with a request for a drinking test by a police officer for a drinking test in a situation where a witness who had observed a drinking and a drinking driving by the defendant was found to have been a witness, the crime of non-compliance with a drinking test under the Road Traffic Act is established

[1] Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act / [2] Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act / [3] Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act

[1] [2] Supreme Court Decision 99Do2899 delivered on December 28, 1999 (Gong2000Sang, 427) / [1] Supreme Court Decision 96Do3069 delivered on June 13, 1997 (Gong1997Ha, 2098) Supreme Court Decision 97Nu20755 delivered on March 27, 1998 (Gong198Sang, 1233)

Defendant

Prosecutor

Cheongju District Court Decision 2000No555 delivered on December 8, 2000

The judgment below is reversed, and the case is remanded to Cheongju District Court Panel Division.

We examine the grounds of appeal.

1. According to the records, the defendant, from Apr. 6, 200 to Apr. 6, 200, drinked alcoholic beverages at the restaurant located in the cafeteria of the Chungcheongbuk-gun, 17:30, after gathering a small work, destroyed beer's disease, glass cup, fraud, and entrance glass, destroyed the cargo vehicle and escaped from the vehicle at the request of compensation by the restaurant operator, and upon the report of the restaurant operator, arrested the defendant who was at the house at around 22:25 on the same day and sent it to the police box, and requested the defendant to take a drinking test, but the defendant failed to comply with the request.

2. As to the prosecution of a violation of Article 107-2 subparagraph 2 and Article 41 (2) of the Road Traffic Act by the prosecutor's refusal to take a alcohol test, the court below affirmed the judgment of the first instance court which acquitted the defendant of the above charges on the ground that the defendant's refusal to take a alcohol test is not a crime of refusal to take a alcohol test under the Road Traffic Act on the ground that the time and location of the defendant's refusal to take a alcohol test seems to be significantly

3. The crime of non-compliance with the measurement of alcohol under subparagraph 2 of Article 107-2 of the Road Traffic Act is established when a person who has reasonable grounds to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 41 (2) of the same Act. In light of the objective circumstances at the time of the request for a measurement of alcohol under Article 41 (2) of the same Act, if there is considerable reason to recognize that a driver has driven a motor vehicle under the influence of alcohol, and it is not clear that it is impossible to confirm whether a driver is under the influence of alcohol, then a police officer may demand a measurement of alcohol after his alcohol, and if the driver refuses to comply with it, the crime of non-compliance with the measurement of alcohol under subparagraph 2 of Article 107-2 of the same Act is established (see Supreme Court Decisions 96Do3069, Jun. 13, 1997; 97Nu20755, Mar. 27, 1998).

In addition, whether there is a reasonable ground to recognize that a driver was driving a motor vehicle under the influence of alcohol shall be determined by comprehensively taking into account the objective circumstances of each individual driver at the time of the request for a breath test, such as the appearance, attitudes, and behavior of driving. In particular, after the completion of the driver's operation, objective circumstances should be determined by comprehensively taking into account such as the driver's appearance, attitudes, and king driver's behavior, kind and quantity of drinking alcohol, and the time and place distance from the completion of the breath test to the request for a breath test (see Supreme Court Decision 99Do2899, Dec. 28, 199).

4. We examine the case of this case based on the above criteria. In light of the fact that the police officer testified that at the time when the defendant demanded a alcohol measurement, the captain and his employee had been trying to see the defendant's drinking and the act of drinking, various acts of disturbance that cannot be seen as the defendant's act of drinking, and the police officer who demanded a alcohol measurement testified that he could have caused the defendant's appearance, attitude, etc. at the time of investigation, it is reasonable to recognize that the defendant driven a motor vehicle under the influence of alcohol even if 5 hours have passed after the defendant's driving act was completed and she was under diving. In addition, even if the defendant stated that she was under the influence of alcohol after the expiration of the driving act, it cannot be said that such circumstance alone does not constitute a case where it is evident that it is impossible to confirm whether she was under the influence of alcohol by means of a alcohol test.

Thus, the police officer could demand a alcohol alcohol measurement under Article 41 (2) of the Road Traffic Act, and the defendant's failure to comply with the provision of Article 107-2 (2) of the same Act is established as long as the defendant does not comply with such demand. However, the court below held that the defendant's refusal to take a alcohol measurement is not a crime of non-compliance with a alcohol measurement on the ground that the defendant's time and place distance from the completion of the alcohol driving to the request for a alcohol measurement is significantly lacking, and therefore, the court below erred by misapprehending the legal principles of Article 41 (2) of the Road Traffic Act

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)