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The defendant shall be innocent.
Reasons
1. Around 03:20 on July 6, 2012, the Defendant driven a motor vehicle at C sea area under the influence of alcohol content of about 0.162% from the 1km section from the Seocho-gu Seoul Seocho-dong to the roads of approximately 406, Gangnam-gu, Seoul.
2. Determination:
(a) When a driver objects to the result of a pulmonology measurement and requests a measurement by means of blood collection, police officers shall comply with it, and when a police officer fails to conduct a measurement by the means of blood collection despite a justifiable request of the driver, the police officers shall not prove the fact of pulmonary driving of the driver only with the result of the said pulmonary tester measurement;
B. (See, e.g., Supreme Court Decision 2001Do7121, Mar. 15, 2002).
As shown in the facts charged in this case, witness D and E make each statement in this court, the circumstantial statement of the driver, the report on detection of the driver, and the investigation report (related to the application of the Ba mark).
In addition, according to each of the above evidence, police officers E, who belong to the Seoul Gangnam Police Station F department, tried to take a breath alcohol test by sending the accident report between the vehicle driven by the defendant and other vehicles on July 6, 2012, and tried to take a breath alcohol test against the defendant, but not measured. The defendant was sent to the office in charge of the investigation of traffic accidents at Gangnam Police Station around 05:18 on July 6, 2012, and the breath alcohol level of the defendant was measured as 0.14% at the above office. As a result, it can be acknowledged that the blood alcohol level of the defendant was measured as 0.14%.
C. In light of the aforementioned legal principles, in full view of the following circumstances acknowledged by the record, a police officer appears to have failed to conduct a measurement by means of blood sampling despite the Defendant’s legitimate demand. Thus, the result of the alcohol testing by the above respiratory tester cannot alone prove the Defendant’s main driving.