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The prosecutor's appeal is dismissed.
Reasons
1. Article 44(2) of the Road Traffic Act provides that “If there is a considerable reason to suspect that a person has driven a motor vehicle, etc. under the influence of alcohol, the driver may take a breath test of whether the person is under the influence of alcohol. In this case, the driver shall comply with a breath test by a police officer.” In this case, as well as when there are reasonable grounds to believe that the driver has driven a motor vehicle, etc. under the influence of alcohol, and even when the situation where the person under the influence of alcohol is suspected to have driven the motor vehicle
According to evidence, it is acknowledged that the defendant under the influence of alcohol was guilty of driving at the time of control, and therefore, the defendant refused to take a drinking test despite the police officer's duty to comply with the request for a drinking test, so the first instance court's failure to take a drinking test constitutes a crime of non-compliance with a drinking test. However, the court below erred by misapprehending the legal principles concerning the establishment of a crime
2. The crime of non-compliance with the measurement of alcohol under Article 148-2 (1) 2 of the Road Traffic Act is established when a person who has reasonable grounds to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 44 (2) of the same Act.
In addition, Article 44 (2) of the same Act provides that if a police officer deems it necessary for the safety of traffic and the prevention of danger, or if there are reasonable grounds to recognize that a police officer was driving a motor vehicle under the influence of alcohol in violation of the provisions of paragraph (1), he/she may breathely measure whether a driver is under the influence of alcohol, and the driver
Therefore, it can be recognized that a person has driven a motor vehicle under the influence of alcohol in violation of Article 44(1) of the same Act.