The case holding that it cannot be deemed that there are reasonable grounds to recognize that the defendant was in a state of drinking above 0.05% of blood alcohol level by a drinking bailee punished for the crime of drinking alcohol at the time when the defendant requested a drinking test, but the defendant's non-compliance with the request cannot be deemed as a crime of non-compliance with the drinking alcohol measurement under the Road Traffic Act.

The case holding that it cannot be deemed that there are reasonable grounds to recognize that the defendant was in a state of drinking above 0.05% of blood alcohol level by a drinking bailee punished for the crime of drinking alcohol at the time when the defendant was requested to take a drinking test, even though the defendant was requested to take a drinking, the defendant's act of failing to comply with the request cannot be deemed to constitute a crime of non-compliance with the drinking alcohol measurement under Articles 107-2 and 41 (2)

Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act (amended by Act No. 7545 of May 31, 2005)

Defendant

Defendant

Latherather

Daegu District Court Decision 2005No605 Decided August 17, 2005

Supreme Court Decision 2005Do6575 Delivered on October 28, 2005

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

The Defendant did not refuse a drinking test as stated in the facts charged in the instant case, and even if the Defendant faithfully complied with the demand of the control police officers, such as making a request for a drinking test by the control police officer and making it difficult, the lower court found the Defendant guilty of the instant facts charged, which erred by misapprehending the facts and adversely affecting the conclusion of the judgment, or even if not, the sentence sentenced by the lower court is too unreasonable.

2. Summary of the facts charged in this case

The summary of the facts charged in the instant case is that “the Defendant failed to comply with the demand for a alcohol test on the grounds that there are reasonable grounds to recognize the Defendant’s inside of the inside of the Defendant from the Nonindicted Party, the head of the Sungsung Police Station Dosan District Police Station, on August 30, 2004, on the front day of a bad kindergarten located in Daegu Suwon-gu 1336, on the gallon (registration number omitted) at around 22:00, on the ground that he was under the influence of alcohol by driving a motor vehicle with a gallon (registration number omitted).

3. Determination

The defendant, consistent with the judgment of the court below, stated that he did not refuse a drinking test as stated in the facts charged in this case, and that he responded to a drinking test at the request of the enforcement officer, and denied the facts charged in this case. According to the statement and investigation report by the non-indicted witness of the court below, the defendant, at around 22:00 on August 30, 2004, responded to a drinking test at around 22:0 of the date of the driving of this case, even though he had a drinking reaction during the drinking-free test at around 22:0, the police officer's respiratory test at around 2

However, the crime of non-compliance with the measurement of alcohol under Article 107-2 Item 2 of the Road Traffic Act is established when a person who has a reasonable ground to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 41 (2) of the same Act. The term "under the influence of alcohol" in this context refers to the state of non-compliance with the measurement of alcohol above 0.05% of blood alcohol by a person under the influence of alcohol. Thus, in order to establish the crime of non-compliance with the measurement of alcohol, a driver must be deemed to have a state of not less than 0.05% of blood alcohol level at the time of the request for the measurement of alcohol level, but there must be reasonable grounds to recognize that the driver is in the state of under the influence of alcohol at least 0.05% of blood alcohol level at the time of the request for the measurement of alcohol level. Furthermore, whether there are reasonable grounds to recognize that the person under the influence of alcohol was in the test of alcohol prior to the request of the measurement of alcohol level of alcohol.

Therefore, in light of the following: (a) whether there is a reasonable ground to recognize that the defendant was in a state of blood alcohol level of 0.05% or more at the time; (b) according to the report on the statement on the state of drinking driver (Investigation Record 4,5 pages) the defendant made a suspicion that the defendant was in a state of drinking at the time when he was in a state of blood alcohol level of 0.05% or more; and (c) due to the response of drinking in a state of drinking alcohol test at the time when he was in a state of drinking, the controlling police officer made a suspicion that the defendant was in a state of drinking, but the blood color and walking condition were red, and was in a state of drinking and walking condition; (b) further, even when calculating the blood alcohol concentration of the defendant at the time when he was discovered by the Hemark formula, it was 0.08% less than the standard of under which driving is prohibited even if the defendant was in a state of drinking alcohol level of 205% or more at the time of his request, it is difficult to deem that the defendant was in a state of drinking alcohol level of 1.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is as shown in the above 2 paragraph, and there is no proof of crime as stated in the above 3, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325

Judges Jo Jong-dae (Presiding Judge)