[1] The degree of proof required for the recognition of a presumed fact in the calculation of the level of master exploitation using the Ba mark formula

[2] The fact that consideration should be given to the calculation of the blood alcohol concentration using the reverse acid method in accordance with the Ba mark formula

[3] The case holding that it cannot be concluded that a blood alcohol level which was presumed to have been in excess of the punishment standard level at the time of driving even if the blood alcohol level, based on the results of the ex post facto drinking measuring instrument measurement, is extremely superior to the punishment standard level

[1] If the blood alcohol level can be measured by examining the driver's blood, pulmonary and other samples immediately after driving, the blood alcohol level at the time of driving can be presumed as a result of calculation based on a veterinary method using the so-called submark formula. However, in a case where an empirical rule, such as scientific public awareness, is used to find out the existence of the elements of crime, it requires strict certification as to individual and specific facts which are the premise for the application of the rule of law.

[2] In calculating the blood alcohol concentration at the time of driving by adding the blood alcohol concentration after a certain time from the specific driving point of time to the degree of decline due to the decline due to the decomposition and extinguishment of the blood alcohol, various factors such as the level of normal alcohol, physical constitution, drinking speed, and the degree of physical activities after drinking may affect the decline of the blood alcohol during time. Thus, in criminal trials, it is necessary to prove that the conviction in criminal trials is true enough to have a judge's reasonable doubt. Thus, in applying the above influence factors, it is necessary to determine that the average decrease is not applied by readily concluding that the defendant is average, and if necessary, it is necessary to determine factors that may affect the blood alcohol concentration with professional knowledge or experience, and if it is considerably necessary, it is necessary to determine the degree that the blood alcohol concentration exceeds the above officially calculated level, not to permit the blood alcohol concentration.

[3] The case holding that even if the blood alcohol concentration which was inferred by the Fdmark formula based on the result of the ex-post alcohol measuring instrument's measurement is extremely superior to the punishment standard level, it cannot be readily concluded that the blood alcohol concentration exceeded the punishment standard level at the time of driving

[1][2] [3] Article 41 of the Road Traffic Act, Article 107-2 of the Road Traffic Act, Article 307 of the Criminal Procedure Act

[1] [2] Supreme Court Decision 2001Do1929 decided Jul. 13, 2001 (Gong2001Ha, 1904) / [1] Supreme Court Decision 2000Do3307 decided Oct. 24, 200 (Gong2000Ha, 2473) decided Nov. 10, 200 (Gong2001Sang, 755)

Defendant

Prosecutor

Seoul District Court Decision 2002No8526 delivered on November 13, 2002

The appeal is dismissed.

According to the reasoning of the judgment below, among the facts charged in this case, there were 0.02:20 on May 15, 2002 that the defendant driven a vehicle under the influence of alcohol on 0.06% on May 15, 2002, a 0.0% alcohol level report (19 pages of investigation records) and a 0.07% mark report (20 pages of investigation records). The 0.07% mark of the defendant's blood alcohol level on the same day was measured with the 07:45 respiratory measurement method and the 0.0% mark of the defendant's blood alcohol level at the time of measurement. Considering that the defendant's 0.5% mark model applied the above 0% mark, the defendant's 0.0% mark at the time of 0% on blood alcohol level at the time of 0.0% on the date of 0% on which 5% alcohol level was measured after 0% on the 0.0% alcohol level at the time of 0.0% on the 0.0% level of alcohol level.

If it is not possible to measure blood alcohol concentration by testing a driver's blood or pulmonary sample immediately after driving, it can be presumed that blood alcohol concentration at the time of driving as a result of scientific calculation using so-called dicmark formula. However, if an empirical rule, such as scientific public awareness, is used to find out whether the constituent elements of crime exist, it is required to provide strict proof as to individual and specific facts premised on the application of such rule. Meanwhile, if it is based on the blood alcohol concentration measured after a certain time from a specific driving point of time by using dicmark formula and it is necessary to determine that the blood content concentration at the time of driving exceeds 10,00,000,000, 10,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00.

When at least 0.08% of the blood alcohol concentration per time which is generally confirmed as the grounds of appeal by the prosecutor, as shown in the grounds of appeal by the prosecutor, this number is the most favorable to the defendant, and as such, when calculating the blood alcohol concentration at around 02:20 as of the time of the accident according to the Bamark formula by applying the most favorable decrease rate to the defendant, it would be 0.0503% of the blood alcohol concentration at the time of the accident and result in more than 0.05% which is the punishment standard under the Road Traffic Act.

However, the degree of excess is more than 0.003%, and when considering the reduced rate per hour of blood alcohol content as 0.008%, it is merely a decrease between two-minutes and 30 seconds. In light of the fact that it is difficult for an investigation agency to specify the time of occurrence of a case in the investigation agency to attain the above accuracy, it is cut and specified at approximately ten minutes (the time of occurrence of the accident of this case is specified at about 02:20), and even if considering the possibility of mechanical error of the respiratory tester itself like the court below, even if the possibility of the occurrence of the case does not take into account, it cannot be concluded that the blood alcohol concentration at the time of the accident of the defendant exceeded the punishment standard.

Therefore, the conclusion of the court below that it cannot be readily concluded that the blood alcohol level at the time of the defendant's driving reaches 0.05% cannot be concluded that the defendant's blood alcohol level is above 0.05% is justifiable, and the ground of appeal on this point is not acceptable.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)