(영문) 창원지방법원 2014.11.20.선고 2014노1976 판결

It is true that police officers dispatched to the scene at the time of the instant case did not notify the Defendant that they may refuse to accompany the Defendant prior to accompanying the Defendant to the zone. However, considering the time, place, method of accompanying, and objective situation prior to and after accompanying, etc., at the time of the instant case, the Defendant was accompanying the police officers to the zone according to his voluntary will, and at the time of the instant case, the Defendant did not demand the withdrawal from the zone, and did not have any situation that makes it impossible to leave the zone. Thus, since there was no physical or psychological pressure during the course of the Defendant’s series of voluntary driving against the Defendant, it shall be deemed legitimate voluntary driving, and accordingly, the Defendant shall be deemed to have been subject to the crime of refusing to take a drinking alcohol measurement. Nevertheless, the lower court acquitted the Defendant on the instant charges on the grounds that it is difficult to recognize the legality of voluntary driving. Thus, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby affecting the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

On February 13, 2014, at around 03:15, the Defendant driven a ecoo vehicle C while drinking alcohol, proceeded with approximately 50 meters section from the GS convenience point front of the GS convenience point in Kimhae-dong to the front road in front of the National Bank located in the same Dong-dong, and received a stop signal, and was discovered to a police officer under control by diving during the stop and was under an investigation on the above drunk driving at around 03:36 of the same day, the Defendant was aware of him/her during the stop and was under the investigation on the said drunk driving at around 03:36 of the same day, while he/she was under the influence of alcohol from the above E zone Police Officer in the above E zone, and was under the influence of alcohol on the face of him/her, he/she did not comply with a total of about 30 minutes of alcohol consumption measurement without justifiable grounds.

B. The judgment of the court below

(1) Article 199(1) of the Criminal Procedure Act explicitly provides for the principle of voluntary investigation, and Article 199(1) of the Criminal Procedure Act provides for accompanying a criminal suspect to an investigative agency, etc. in the form of obtaining consent during the investigation process does not have any means to restrain the suspect’s physical freedom even though it is substantially similar to the arrest, and thus, it is not systematic nor practical decentralization. Moreover, it is reasonable to view that the legality of accompanying is recognized only in cases where it is clearly proven by objective circumstances that the investigator could refuse accompanying of the suspect prior to accompanying, such as where the investigator knew that he/she could refuse accompanying of the suspect, or where the suspect could freely leave or leave the accompanying place at any time, and it is likely that the accompanying was carried out by the investigative agency, etc. solely through his/her voluntary will of the suspect, such as where it is evident that there is no clear evidence by objective circumstances.

Recognizing that the driving of a motor vehicle is not necessary for traffic safety and prevention of danger;

A drinking test conducted solely on the ground that there is a considerable reason has meaning as an investigation procedure to collect evidence of a crime of drinking driving already conducted. Since the provisions of the Road Traffic Act cannot serve as the basis for a compulsory disposition for the measurement of drinking alcohol, the pertinent driver’s compulsory performance for the measurement of drinking alcohol constitutes an illegal arrest. In a case where a drinking measurement request is made in such unlawful arrest, the illegal arrest for the measurement of drinking alcohol and its objection are continued for the purpose of collecting evidence of a crime of drinking driving, and it is not appropriate to individually evaluate the legitimacy of a drinking measurement request. Thus, even if there is considerable reason to recognize a driver as driving a drinking, it is unreasonable to consider the driver as having a duty to comply with the request for measurement of drinking alcohol, and thus compelling the driver to comply with it, it cannot be punished for a violation of the Road Traffic Act (see, e.g., Supreme Court Decision 200Do1648, Jun. 4, 200). 206.

(2) The following facts acknowledged by the evidence duly examined and adopted by this court are: ① the Defendant stops a ecoo vehicle in C in the vicinity of Hart distance in G Kimhae-si and was locked to a driver’s seat at two-lanes; ② the Defendant requested the police officer to accompany him to a nearby district to measure the alcohol consumption to collect the evidence of a drunk driving from the enforcement police officer who was in receipt of a report on the suspicion of a drunk driving and was sitting at the driver’s seat; ② the Defendant first stated that he was aware of his driving and caused the vehicle to go to the earth; ③ the police officer’s voluntary operation as required for a drinking test; ③ the police officer’s refusal to arrest the police officer at 0-lanes, and the Defendant’s refusal to voluntarily arrest the police officer at 10-lanes. The Defendant’s refusal to voluntarily arrest the police officer until the police officer’s non-compliance with the police officer’s request was made (see, e.g., the Defendant’s refusal to voluntarily arrest the police officer until the police officer’s refusal of drinking measurement.

(3) Ultimately, the instant request for measurement of drinking alcohol was made in an illegal arrest against the Defendant, and thus, the Defendant cannot be punished as a violation of the Road Traffic Act concerning refusal of measurement of drinking alcohol, and there is no other evidence to prove that there was a request for measurement of drinking alcohol according to legitimate procedures. Thus, the Defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

C. The judgment of this Court

Examining the evidence duly adopted and examined by the court below in light of the records, it is just to find that the court below did not prove the facts charged of this case and found the defendant not guilty of the facts charged of this case on the grounds as stated in the above decision, and it cannot be deemed that the court below erred by misunderstanding facts or misunderstanding legal principles as alleged in the prosecutor's grounds of appeal. Thus,

3. Conclusion

Therefore, the appeal by the prosecutor is dismissed as it is without merit, and it is so decided as per Disposition.