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The prosecutor's appeal is dismissed.
Reasons
1. If there is a reasonable ground to recognize that a police officer was engaged in drinking in light of the gist of the grounds for appeal, the defendant is obligated to respond to a police officer's request for sobreath test even if he did not actually drive.
Therefore, as long as the defendant refused a police officer's request for taking a alcohol test, the crime of violation of the Road Traffic Act is established, the judgment below which acquitted the defendant in accordance with other legal principles is erroneous in the misapprehension of legal principles.
2. Review of the determination of the court below, on the ground that there are reasonable grounds to recognize that a person has driven a motor vehicle while under the influence of alcohol in violation of Article 44 (1) of the Road Traffic Act, and a person who is obliged to comply with a request for a so-called alcohol test by a police officer, is the driver of the relevant motor vehicle, and a person who is not a driver of the relevant motor vehicle, may not be deemed to have violated the provisions of Article 44 (1) of the Road Traffic Act
(2) In light of the aforementioned legal principles, the lower court did not err by misapprehending the legal doctrine on the demand for alcohol alcohol measurement, as otherwise alleged in the ground of appeal. In so doing, it did not err by misapprehending the legal doctrine on the demand for alcohol alcohol measurement, as otherwise alleged in the ground of appeal, contrary to what is alleged in the ground of appeal.
In Supreme Court Decision 2005Do8596 Decided October 11, 2007, the issue was that the defendant was not actually driving a motor vehicle, but there was a considerable reason to recognize that a police officer was driving a motor vehicle in light of various circumstances.
Therefore, the court below acknowledged the crime of violation of the Road Traffic Act (Refusal of measurement) in holding the same contents as the grounds for appeal by the prosecutor, but the Supreme Court stated the above legal principles, and then "the defendant is not a driver of the vehicle concerned, and thus is a police officer.