[1] Requirements for determining the result of a drinking test as evidence of guilt

[2] The degree and method of certification for the recognition of the relevant premise in the event that the degree of exploitation is calculated by using the Worldmark formula

[3] The case holding that it cannot be readily concluded that a driver was engaged in drinking, in light of the fact that the driver did not take all measures to prevent excessive measurements due to alcohol remaining in the mouth while measuring alcohol, and that the driver applied the blood alcohol concentration related to the body inappropriate in calculating the blood alcohol level in accordance with the Badmark formula

[1] The result of the measurement of alcohol conducted under the provisions of Article 44 (2) of the Road Traffic Act can serve as the basis for imposing unfavorable measures against the driver, such as cancellation or suspension of the driver's license, and it can be used as an important evidence in the future investigation and trial. Thus, the measurement of alcohol should be conducted in accordance with fair methods and procedures to ensure the accuracy and objectivity of the measurement, such as taking necessary measures in advance to prevent any error due to alcohol remaining in the mouth of the driver's mouth. If the result of the measurement of alcohol is not obtained through such methods and procedures, it shall not be easily admitted as evidence of guilt.

[2] In order to find out the existence or absence of the elements of crime, individual and specific facts that constitute the premise for the application of the rule of law need to be strictly proved. In the case of the above-mark formula, it is necessary to provide strict proof of such premise facts as the quantity of alcohol taken in as data for the application thereof, drinking time, and body weight. On the other hand, the presumption method of blood alcohol concentration according to the above-mark formula has parts concerning the maximum blood alcohol concentration due to absorption and distribution of alcohol, and decomposition and extinction due to time. Of that, in calculating the highest blood alcohol concentration, it is necessary to reasonably prove that the defendant's maximum blood alcohol concentration can have an influence on the outcome, such as physical absorption rate and degree, rain, height, weight, etc., and that it can not easily affect the conclusion that the defendant's average blood alcohol concentration would have an influence on each individual, and it is necessary to reasonably determine the degree of influence on each person's blood alcohol concentration at an objective and reasonable level, such as the degree of influence on the person's blood alcohol concentration and degree of influence on each part of alcohol.

[3] The case holding that it cannot be readily concluded that a driver has driven a motor vehicle under the influence of 0.05% or more on the sole basis of the fact that the blood alcohol level measurement level came to 0.062% in light of the fact that the driver did not take all measures to prevent excessive measurement due to alcohol remaining in the mouth when measuring the alcohol level for the driver, and that the blood alcohol level measurement level was applied to the body related to the body inappropriate in calculating the blood alcohol level in accordance with the Badmark formula

[1] Article 44 (2) of the Road Traffic Act / [2] Article 307 of the Criminal Procedure Act, Article 44 of the Road Traffic Act / [3] Article 307 of the Criminal Procedure Act, Article 44 of the Road Traffic Act, Article 150 subparagraph 1 of the Road Traffic

[1] Supreme Court Decision 2005Do7528 delivered on May 26, 2006 (Gong2006Ha, 1221) / [2] Supreme Court Decision 99Do128 delivered on June 27, 200 (Gong2000Ha, 1798), Supreme Court Decision 2000Do307 Delivered on October 24, 2000 (Gong2000Ha, 2473), Supreme Court Decision 99Do541 Delivered on November 10, 200 (Gong201Sang, 75), Supreme Court Decision 2002Do6762 delivered on April 25, 2003 (Gong203, 1383), Supreme Court Decision 2006Do3685 delivered on November 23, 206.

Defendant

Defendant

Seoul Central District Court Decision 2008No1424 Decided June 12, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

The result of the measurement of alcohol conducted under the provisions of Article 44 (2) of the Road Traffic Act can be the basis for imposing disadvantageous measures on the driver concerned, such as cancellation or suspension of the driver's license, and it can be used as important evidence in investigation and trial in the future. Thus, in measuring alcohol, it shall be done in accordance with fair methods and procedures to ensure the accuracy and objectivity of the measurement, such as taking necessary measures in advance to prevent any error due to alcohol remaining in the mouth of the driver, and if the result of the measurement of alcohol is not obtained through such methods and procedures, it shall not be easily admitted as evidence of guilt (see Supreme Court Decision 2005Do7528 delivered on May 26, 2006).

Meanwhile, in a case where an empirical rule, such as scientific public awareness, is used to find the existence of the elements of crime, it is necessary to provide strict proof of individual and specific facts that constitute the premise for the application of the rule of law. In the case of the above mark official, the quantity of alcohol taken in as material for the application of the rule of law, drinking time, body weight, etc. Therefore, strict proof of such premise facts is required. Furthermore, the presumption method of blood alcohol concentration in the above mark official formula has part concerning the maximum blood alcohol concentration due to absorption and distribution of alcohol, and decomposition and extinction due to time. Among them, in calculation of the maximum blood alcohol concentration, it can affect the outcome, and it is necessary to reasonably determine the degree of influence of the defendant's average blood alcohol concentration to the extent that it can not easily affect the blood alcohol concentration in the charges, such as 0 degree and degree of rain, age, and weight, 100, 10,000,000,000 won, and 10,000,000 won, etc.).

According to the records, on October 13, 2007, the Defendant measured the blood alcohol concentration of the Defendant at around 22:15 with a alcohol level of 0.109%, on the basis of the Defendant’s blood alcohol concentration of 0.21% after the instant accident, and the Defendant measured the blood alcohol concentration of 0.7% after the instant accident, based on the Defendant’s measurement of 0.7% alcohol concentration of 0.4% after the instant accident, based on the Defendant’s blood alcohol concentration of 0.7% after the instant accident, and the Defendant applied the above 7.4% alcohol concentration of 7.6% after the instant accident, based on the Defendant’s blood alcohol concentration of 0.4% after the instant accident.

In light of the above legal principles, the measurement of alcohol to the defendant was conducted under the condition that the defendant did not take measures to prevent excessive measurements due to remaining alcohol, etc. in the mouth, such as having the defendant make the drafting of water as water at the time when ten minutes have not passed after drinking. Thus, it cannot be ruled out that excessive measurements due to remaining alcohol in the mouth cannot be used as evidence of guilt. In addition, the police applied 0.86 to the defendant's Bamark Madmark Madmark Madmark Madmark Madmark Madmark Madmark Madmark Madmark Madmark Madmark in order to estimate the blood alcohol concentration after drinking, but there was no evidence that the physical conditions, etc. of the defendant at the time of recording are appropriate to apply the above 0.86%, from among the already known reliable statistical data, it cannot be concluded that the defendant had engaged in the 0.86 percent alcohol concentration of the defendant in the above case by applying the Madmark Madmark 90% x 207.7% alcohol x x 97.7.20% alcohol x x x 5.7.7.0.20.20.

Nevertheless, the court below affirmed the judgment of the court of first instance which found the Defendant guilty of all the charges of this case on the ground that the Defendant was in the state of drinking alcohol concentration of 0.062% at the time of the accident of this case. The court below erred by violating the rules of evidence or by misapprehending the legal principles on methods of measuring drinking alcohol or the application of the Badmark formula, thereby affecting the conclusion of the judgment. The ground of

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)