The prosecutor's appeal is dismissed.

In light of the following: (a) the interval between the time point of the Defendant’s end of driving and the time point of the respiratory measurement is about 17 minutes; (b) the Defendant’s blood alcohol concentration in the blood at the time of the alcohol measurement was risen; and (c) the alcohol measuring instrument is adjusted to be measured lower than the actual level; and (b) the Defendant is sufficiently recognized to have driven more than 0.05% of the alcohol concentration in blood; (c) the lower court acquitted the Defendant on the ground that the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine that affected the conclusion

2. On June 27, 2016, the Defendant, who was under influence of drinking more than twice, driven approximately 100 meters from the road front of the Luxembourg Luxembourg Corresponding from the day before the day of the Luxembourg Corresponding on the same hour, while under the influence of alcohol more than 0.05% in alcohol during blood transfusion at around 22:12, to the front road of the same time.

3. Determination

A. In a situation where it is impossible to determine whether the alcohol level at the time of driving under the relevant legal doctrine is the point of increase in blood alcohol level, or when it is difficult to determine whether the blood level at the time of driving, the alcohol level among the blood measured at the time when the driving is completed, has exceeded the punishment standard value.

Even if the blood alcohol concentration at the actual driving time exceeds the standard level of punishment.

It shall not be readily concluded.

Although there are differences for each individual, the blood alcohol concentration between 30 minutes and 90 minutes after drinking, and thereafter, it is generally known that the blood alcohol concentration between 0.008 and 0.03% per hour (average 0.015%) is reduced by 0.08% per hour. If the driving is completed during the blood concentration, if the blood alcohol concentration is under the rise period, it is likely that the blood alcohol concentration at the time of driving is lower than the blood concentration actually measured.

However, there is an interval between the driving point and the blood alcohol concentration measurement point, and at that time, the alcohol concentration in the blood seems to increase.

8.2