(영문) 전주지방법원 2019.07.17 2019노568 | 리걸엔진

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Reasons

텍스트 조절

글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 전주지방법원 2019.07.17 2019노568

도로교통법위반(음주운전)등

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

Provided, That the above punishment shall be imposed for two years from the date this judgment became final and conclusive.

Reasons

1. The summary of the grounds for appeal (e.g., imprisonment for not less than 8 months, 2 years of suspended sentence, 120 hours of probation, 40 hours of probation service, 40 hours of law-abiding driving lecture) of the lower court is deemed to be too uneasible and unfair.

2. Ex officio determination

A. Before the judgment on the grounds for appeal by the prosecutor of the amendment to a bill of indictment was examined ex officio, and the prosecutor was in the trial of the case, and the prosecutor applied for the amendment to a bill of indictment with the content that “under the influence of alcohol level of 0.096%” was changed to “under the influence of alcohol level of 0.05% or more” among the facts charged in the instant case, the judgment of the court below was no longer maintained.

B. Determination of the changed facts charged 1) Even if the interval between the time of driving and the time of measuring the blood alcohol level and the time of the measurement, it cannot be deemed impossible to prove that the blood alcohol level at the time of driving actually exceeded the punishment standard due to such circumstance. In such a case, whether it can be seen that the blood alcohol level at the time of driving was above the punishment standard should be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account the following circumstances: (a) the interval between driving and the measurement; (b) the difference between the number of blood alcohol level measured at the time of driving and the punishment standard; (c) the number of hours during which the alcohol level was maintained; (d) the driver’s behavior at the time of driving; (e) the degree of traffic accident; and (e) the background and circumstances of the accident (see, e.g., Supreme Court Decisions 2013Do6285, Oct. 24, 2013; 2014Do360, Jun. 12, 2014).

(1) The defendant shall make the last alcohol.

참조판례

-대법원 2013. 10. 24. 선고 2013도6285 판결

-대법원 2014. 6. 12. 선고 2014도3360 판결

유사 판례

-제주지방법원 2015.05.21 2014노435

-대구지방법원 2014.11.27 2014노1891

-울산지방법원 2015.03.05 2014고정1376

-서울중앙지방법원 2019.03.18 2019고정110