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대구지방법원 2018.11.08 2018노1806

The defendant's appeal is dismissed.


1. Summary of grounds for appeal;

A. The blood alcohol concentration from blood due to a pulmonary measuring instrument was 0.108%, but the blood alcohol concentration was 0.186% due to blood examination.

Since the blood alcohol concentration in blood through blood tests is measured at the level of alcohol concentration in blood, it can not be said that the blood alcohol concentration in the blood at the time of driving the Defendant's blood.

B. The sentencing of the lower court’s unfair sentencing (an amount of four million won) is too unreasonable.

2. Determination

A. In the case of a measurement by a respiratory measuring instrument with respect to the assertion of factual mistake, there may be problems in the accuracy and reliability of the measurement result based on the state of the measuring instrument, measuring method, cooperation degree of the other party. Thus, barring any special circumstance that the result of the measurement by blood gathering is difficult to believe, such as artificial manipulation in the process of blood collection or examination, or errors by the related parties, it conforms to the empirical rule to regard the blood testing as a result of the measurement as a result of the blood alcohol level as a level adjacent to the blood concentration at the time of measurement than the breath measurement by the breath measuring instrument (see Supreme Court Decision 2003Do6905, Feb. 13, 2004, etc.). Meanwhile, although there are differences for each individual, the blood alcohol concentration between 30 minutes and 90 minutes after drinking, and thereafter, about 0.08% per hour to 00.03% (average 0.15%).

According to the evidence examined by the court below, the following facts are established: ① the Defendant was driving the instant drinking on January 11, 2018 at around 06:40 on the same day, and ② the Defendant was 0.108% on the same day; ② the Defendant’s blood alcohol concentration among blood that was conducted by the respiratory measurement method conducted by the Defendant around 07:02 on the same day; ③ the Defendant requested the re-measurement of blood collection method and collected blood from the Defendant on around 07:29 on the same day; ③ the Defendant was collecting blood from the Defendant on the same day; ④ the blood alcohol concentration among blood that was conducted by the above blood testing was 0.186% on the same day; ④ the Defendant’s final drinking point at around 05:0 on the same day.