The prosecutor's appeal is dismissed.

1. As to the facts charged in this case, the court below found the defendant not guilty on the grounds that the defendant's time of driving at the time falls under the increase of blood alcohol concentration due to high possibility of falling under the increase of blood alcohol concentration at the time, and thus, in the method of reverse calculation by applying the upper mark public formula to the blood alcohol concentration measured at the time when 22 minutes have elapsed from the driving time, the defendant's blood alcohol concentration at the time of driving cannot be calculated at the time of driving. However, it is legitimate to apply the upper public formula by applying the upper public formula on the grounds that it is difficult for the defendant to measure the blood alcohol concentration at the time immediately after driving, which is the increase of blood alcohol concentration, based on the remaining time after 90 minutes have been restricted due to

Therefore, it is reasonable to view that the defendant was driving under influence as stated in the facts charged in this case.

Therefore, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2. Determination

A. In a case where it is difficult to determine whether the time when a drunk driving is conducted falls under the national plane where blood alcohol concentration is risen toward the highest level or belongs to the national plane where he is under the highest level after reaching the highest level. Rather, in a case where there is a possibility that the blood alcohol concentration is increased in a national plane where the blood alcohol concentration is raised, the part on decomposition extinguishment after a considerable time from the time when the blood alcohol concentration is measured after the time when the drunk driving was conducted can only be applied to the blood alcohol concentration in the so-called redmark formula (HE 2) and the blood alcohol concentration at the time when the blood alcohol concentration is measured cannot be confirmed (see, e.g., Supreme Court Decision 2006Du15035, Jan. 11, 207). According to the general medical view, the blood alcohol concentration caused by drinking is ordinarily high, such as the quality of the person under whose blood alcohol is tested, the kind of drinking alcohol, the degree of drinking alcohol, and the degree of food or food consumption at the time when it was conducted.