The case holding that considering the fact that the distance between the time when the blood alcohol concentration was measured by blood gathering and the time difference between the time when the blood alcohol concentration is 87 minutes, it cannot be deemed that there is no proof of drinking driving to the extent that there is sufficient proof with the result of the respiratory measurement of 0.053% exceeding 0.03% from the punishment standard values alone.

Articles 41 (see current Article 44) and 107-2 (see current Article 150) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005), Article 307 of the Criminal Procedure Act

[Plaintiff-Appellant] 2005Do3904 decided Jul. 28, 2005 (Gong2005Ha, 1471)

Defendant

Defendant

Daejeon District Court Decision 2006No654 Decided July 27, 2006

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

We examine the grounds of appeal.

According to the records, from around 21:00 on August 29, 2005 to 22:30 on the same day, the Defendant was found to have measured the blood alcohol concentration by the respiratory alcohol measuring instruments at around 23:26 on the same day, when he was found to have driven 4-5 kn't week from the cross-unfast head in the Seosung-dong, Daejeon Pungdong, and returned home to his house after drinking 4-5 kn't, and was discovered to control drinking, and the blood alcohol concentration by the respiratory alcohol measuring instruments at around 23:26 on the same day. Accordingly, it is recognized that the Defendant demanded the blood alcohol concentration measurement by blood gathering at the Sungsung Hospital located in Daejeon at around 23:57 on the same day and measured the blood alcohol concentration at around 0.046% on the same day.

According to the reasoning of the judgment below, the court below found the defendant guilty of 0.05% on August 29, 2005, when calculating the blood alcohol concentration at around 23:26, which is the time of detection of the defendant's blood samples, according to the above dmark formula, as 0.0% on August 29, 2005, and also found the defendant guilty of 20.0% on the ground that the defendant's time of drinking and blood gathering time is merely 87 minutes, etc., and it cannot be determined whether the blood alcohol concentration at the time of drinking driving at 0.0% on the ground that 0% of the changed blood alcohol concentration at 0.0% on the 5th alcohol concentration at the above 0.0% on the 5th 0th 0th 0th 0th 6th 2th 200 on the ground that the above 5th 5th 0th 0th 0th 20 on the blood alcohol density measured by the above 5th 20.0% alcohol concentration on the ground of this case.

However, as recognized by the court below, the distance between the time of measurement of blood alcohol level from the time of blood gathering and the time of measurement is merely 87 percent, and it is difficult to find out whether the blood alcohol level has risen between the time of detection and the time of blood gathering and the time of blood gathering, etc., a considerable doubt and uncertainty should be inherent in the reverse calculation method based on the Airmark formula, and considering the fact that blood alcohol level is 0.05% high in blood alcohol level based on the Airmark formula, it cannot be a evidence of guilt that blood gathering results, unless it can be proven to the extent that there is sufficient doubt, solely on the result of the respiratory measurement of 0.053% more than 03% higher than 0.03% higher than the punishment standard value.

Therefore, the facts charged in this case should be judged as not guilty because there is no proof, and the decision of the court below that there is evidence of crime is an error of law in violation of the rules of evidence, which affected the conclusion of the judgment. The defendant's appeal pointing this out has merit.

Therefore, the judgment 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 on the bench.

Justices Jeon Soo-ahn (Presiding Justice)