The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. In a situation where it is impossible to determine whether the blood alcohol concentration at the time of driving under the influence of alcohol is the rise point or lower point of time, even if the blood alcohol concentration measured at the time when the driving was completed at a considerable time after the completion of the operation exceeds the penalty standard, it cannot be readily concluded that the blood alcohol concentration at the time of actual driving exceeds the penalty standard.

Although there are differences for each individual, it is generally known that blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest level, and thereafter, about 0.08% and 0.03% (average about 0.015%) per hour. If the driving is in the rise season, if the blood alcohol concentration at the time of driving is lower than the blood alcohol concentration actually measured, there is a possibility that the blood alcohol concentration at the time of driving may be lower than the blood alcohol concentration actually measured.

However, even if there exists an interval between the time of driving and the time of measuring the blood alcohol concentration and that time appears to increase the blood alcohol concentration, such circumstance alone cannot be deemed impossible to prove that the blood alcohol concentration at the time of actual driving exceeds the punishment standard.

In such cases, the issue of whether a person can be deemed to have been above the standard value of punishment even at the time of driving shall be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances acknowledged by evidence, such as the time interval between driving and measurement, the difference between the measured volume of alcohol content and the standard value of punishment, the continuous time and volume of drinking, the driver’s behavior level at the time of driving regulation and measurement, and the situation of the accident if there is a traffic accident, etc.

2. The reasoning of the lower judgment reveals: (a) the Defendant, from July 8, 2012 to July 01:45, 2012, was driving with the owner of the vehicle in D, and (b) the Defendant, starting driving until 02:08, was performing a respiratory test from the police around 02:31.