(영문) 수원지방법원 2016.5.13.선고 2015노6928 판결

Upon receiving a report from the police officer on a drunk driving by the defendant, the reporter sent to the specific defendant's residence and received the consent of the defendant's wife to take a drinking test. Accordingly, the defendant's request for a drinking test against the defendant is legitimate in accordance with Article 216 (1) 1 of the Criminal Procedure Act, which constitutes a quasi-flagrant offender as follows: ① a voluntary investigation by the defendant's wife's wife's consent is legitimate, or ② a case where the defendant's body or clothes is significantly proven." Nevertheless, the court below acquitted the defendant of the facts charged in this case on the ground that the request for a drinking test against the defendant cannot be deemed lawful. In so doing, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

2. Determination

A. Summary of the facts charged

On March 14, 2015, at around 01:40 on March 14, 2015, the Defendant received 112 report related to the Defendant’s running a drinking on the road front of the Defendant’s house at around 00:07 on March 14, 2015 and received a request from the police officer E belonging to the Siung-gu Police Station D box, who called out, to comply with the measurement of drinking alcohol by inserting the Defendant into a drinking measuring instrument three-minutes over 20 minutes, for the reason that there are reasonable grounds to recognize that the Defendant was driving under the influence of alcohol, such as smelling on the face, making the Defendant snick, snicking on the face, etc.

Nevertheless, the defendant asserts that he did not drive under the influence of alcohol, and avoided this, and did not comply with the request of a police officer for a drinking test without justifiable grounds.

B. The judgment of the court below

Article 215(2) of the Criminal Procedure Act provides that a judicial police officer may seize, search, or inspect a criminal suspect only when there is a circumstance to suspect that the criminal suspect committed a crime and is deemed related to the case at the request of a public prosecutor, and that the judicial police officer's act of entering the residence of another person in order to take a drinking test constitutes a compulsory disposition as a search of the residence of another person. As such, the court below determined that the police officer's act of entering the dwelling of another person constitutes a legitimate request for a drinking test of this case without any exception to the warrant requirement prescribed in Article 216 of the Criminal Procedure Act, etc. In light of the circumstances of this case, the court below determined that the defendant's wife, a foreigner of the native nationality, properly understood and consented to the situation of this case, and that the defendant's consent cannot be seen as a flagrant offender, and that the defendant's act of entering the dwelling of another person constitutes an exception to the warrant of Article 216(1)1 and (2)1 of the Criminal Procedure Act without any exception to the warrant requirement issued by a judicial officer.

C. Judgment of the court below

In light of the following circumstances, which can be recognized by the evidence duly adopted and investigated by the court below, the court below is just in finding the defendant not guilty of the facts charged in this case, and there is no error of misconception of facts or misapprehension of legal principles as alleged by the prosecutor, and thus, the prosecutor's allegation of erroneous facts

1) The prosecutor asserts to the effect that the police officer’s entry into the dwelling of the defendant in the trial room is lawful as it follows with the consent of the defendant’s wife. Even if the defendant withdraws his consent by demanding the eviction, the voluntary investigation that had already been initiated must be deemed legitimate until the completion of the investigation. However, as determined by the court below, it is difficult to see that the defendant’s wife is a foreigner of Thailand, and the police officer sufficiently understood and consented to the entry into the dwelling to search the defendant suspected of drunk driving, without reasonable doubt. Even if the defendant’s wife’s consent is valid, search as a voluntary investigation by the consent is completed as long as the defendant explicitly requested the eviction, and it is reasonable to view that the investigation is completed after the lapse of time, and thus, it is difficult to evaluate that the defendant’s voluntary request for alcohol level measurement was made without complying with the defendant’s explicit request for evacuation, even if considering the situation at the time of emergency and other circumstances such as investigation practices at the time of the request for alcohol measurement for blood alcohol concentration measurement.

2) The prosecutor asserts that the police officer found the defendant at the time when he/she reported the defendant's residence to be suspected of driving under drinking (Article 211(2)1 of the Criminal Procedure Act) and thus, when the defendant was creative and tracking as a criminal (Article 211(2)1 of the same Act) or when the defendant was smelled at the time when the police officer was dispatched to the defendant's residence, since the police officer's entry into the defendant's residence to arrest a quasi flagrant offender who violated the Road Traffic Act (Article 211(2)3 of the Criminal Procedure Act) constitutes "when the defendant's body or clothes was seriously proved" (Article 211(2)3 of the same Act (Article 216(1) of the same Act, it is difficult to see that the police officer's entry into the defendant's residence to arrest a quasi flagrant offender who violated the Road Traffic Act (Article 216(1) of the Road Traffic Act was legitimate at the time of driving under the same police officer's residence, and it is difficult to see that he/she reported the defendant's remaining after drinking.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since it is without merit. It is so decided as per Disposition.