The judgment below

The part against the defendant shall be reversed.

Defendant shall be punished by imprisonment without prison labor for eight months.

In this case.

1. Summary of grounds for appeal;

A. The Defendant’s blood alcohol concentration of 0.061% (hereinafter “the alcohol concentration in the blood of this case”) was not measured at the time of the instant case as to mistake of fact, and the Defendant’s blood content of 0.061% (hereinafter “the blood of this case”) applied the said DNA mark formula based only on the Defendant’s statement without entirely reflecting the Defendant’s final drinking time, driving time, etc.

Considering the amount of drinking alcohol or the time of final drinking, etc., the defendant was proved to have driven an ozone while under the influence of not less than 0.05%, which is the basic value for the punishment of this case.

shall not be deemed to exist.

Nevertheless, the lower court found the Defendant guilty of this part and found the Defendant guilty.

B. The punishment sentenced by the lower court (one hundred months of imprisonment) is too unreasonable.

2. Judgment on the assertion of mistake of facts

A. A. The summary of the facts charged was around 03:12 on December 2, 2016, the Defendant driven a 124cc occ ckis without a license plate in the state of alcohol alcohol concentration of about 0.061% from the front of the medicinal apartment in the New East-dong, Yangcheon-gu Seoul Metropolitan Government to the front of the 279 occ-ro ochy road in front of the underground vehicular road in the same Gu, Yangcheon-gu, Yangcheon-gu.

B. In the case of driving under the relevant legal doctrine, if a driver’s blood or pulmonary sample can be examined before driving and the blood alcohol concentration can be measured, the blood alcohol concentration at the time of driving can be presumed as a result of calculating the blood content using the so-called dmark formula, unless the driver’s blood or pulmonary sample can be measured.

However, it is required to provide strict proof for individual and specific facts, which are the premise for the application of the rule of law, in the case of using the rule of experience, such as official science, in order to identify the existence of the elements of crime.

Using the reverse calculation method in the above dmark formula, based on the blood alcohol concentration in the blood measured after a certain time from the specific driving point of time, and due to the decomposition and extinction of alcohol in the blood of time during this time.