Standard to determine whether the blood alcohol concentration was above the punishment standard level even at the time of driving, if the distance between the time of driving and the time of measuring the blood alcohol concentration and the time of that time seems to have increased the blood alcohol concentration.

Articles 44 and 148-2(2) (see current Article 148-2(3)) of the former Road Traffic Act (Amended by Act No. 15530, Mar. 27, 2018); Article 308 of the Criminal Procedure Act

Supreme Court Decision 2013Do6285 Decided October 24, 2013 (Gong2013Ha, 2175) Supreme Court Decision 2014Do3360 Decided June 12, 2014 (Gong2014Ha, 1500)

Defendant

Prosecutor

Incheon District Court Decision 2017No4135 decided April 18, 2018

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

The grounds of appeal are examined.

1. Summary of the facts charged in this case

On March 7, 2017, around 23:55, the Defendant driven a motor vehicle (motor vehicle number omitted) under the influence of alcohol concentration of 0.059% at a section of about 50 meters from the Do in front of ○○○○○○○-gu △△△dong to the same route to the road of 91 in front of the same route.

2. The judgment of the court below

The court below affirmed the judgment of the court of first instance which acquitted the Defendant of the facts charged in this case on the ground that the fact that the Defendant had been above 0.05% of blood alcohol level at the time of driving an automobile was not proven beyond a reasonable doubt.

3. Judgment of the Supreme Court

A. Even if the interval between the time of driving and the time of measuring the blood alcohol concentration and the time of the measurement, it cannot be deemed impossible to prove that the blood alcohol concentration at the time of actual driving exceeds the punishment threshold, solely on such circumstances alone. In such a case, whether it can be deemed that the blood alcohol concentration at the time of actual driving exceeded the punishment threshold shall be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances recognized by evidence, such as the time difference between the driving and measurement, the difference between the number of the blood alcohol concentration measured at the time of driving and the punishment threshold, the number of the measured blood alcohol concentration at the time of driving and the measured blood alcohol concentration, the number of drivers’ behavior at the time of continuing drinking, the degree of traffic accident, if any, and the circumstances of the accident (see, e.g., Supreme Court Decision 2013Do6285, Oct. 24, 2013).

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the following facts or circumstances are revealed.

1) On March 7, 2017, the Defendant dices alcohol until March 23:38, 2017, and thereafter, the Defendant was found to have been aware of the crackdown on drunk driving from 23:45 to 23:50 on the same day while driving a vehicle with approximately 50 meters of alcohol, and was measured at 0.059% of blood alcohol level as a result of the measurement of alcohol around 23:55.

2) From 23:45 to 23:50, the Defendant got drinking due to a police officer’s drinking reduction, and the Defendant moved his vehicle to a place where the alcohol was measured on the road, following the police officer’s instruction, and sought an explanation on the direction of the police officer, the drafting of the water received was made, and then performed a pulmonary measurement method at around 23:55. Accordingly, the Defendant’s method and procedure for measuring blood alcohol concentration against the Defendant was in line with the police officer’s normal crackdown on drunk driving. As such, the Defendant’s blood alcohol concentration measurement method and procedure was conducted without delay immediately after the lapse of about 5 to 10 minutes from the end of driving, barring any special circumstance, deeming it as the blood alcohol concentration at the time of driving, barring special circumstances.

3) According to the circumstantial statement of a drinking driver, the Defendant’s speech and walking condition appears to be good at the time of detection, but the Defendant’s blood color is indicated as a little red letter. Nonindicted Party 1 stated in the first instance court that “The Defendant was a little red letter at the time of the instant case, the Defendant was in a state where he was in the state where he was in the state of drinking, and was in the state where he was in the state where he was in the state of drinking, and the explanation on the measurement of drinking was not well known.”

4) At the time of the instant case, the police officer in charge of the crackdown asked the Defendant at the time of the instant case whether 20 minutes have elapsed from the time of the final alcohol alcohol, and confirmed the progress, and conducted a re-pulmonary measurement, and took measures to make the Defendant be placed in water drafting before the measurement of alcohol in order to prevent excessive measurement or errors by alcohol remaining in the mouth. At the time of the measurement, the Defendant did not raise any objection to the pulmonary measurement result, and did not demand re-measurement through the collection of blood.

5) The legal statement in the first instance court to the effect that “if the defendant has risen, it is sufficiently possible to increase the blood alcohol concentration by more than 0.009% between five minutes, the blood alcohol concentration by about five minutes is more than the conical statement based on the experience in performing the work of appraising the blood alcohol concentration.”

C. Examining the foregoing factual basis in light of the legal principles as seen earlier, even considering the fact that the Defendant’s blood alcohol measurement time falls under the blood alcohol concentration increase season, it can be deemed that the blood alcohol concentration at the time of driving is above 0.05%.

Nevertheless, solely based on the circumstances indicated in its reasoning, the lower court determined that it was difficult to deem that the Defendant was at least 0.05% of blood alcohol level at the time of driving. In so doing, the lower court erred by misapprehending the legal doctrine on certification of blood alcohol level at the time of driving alcohol level, failing to exhaust all necessary deliberations, or by misapprehending the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. The allegation contained in the grounds of appeal

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)