The prosecutor's appeal is dismissed.

1. The court below held that the request for drinking alcohol measurement of this case was made in accordance with lawful procedures.

Although it is difficult to see that the defendant cannot be punished for an act of failing to comply with the above request for measurement, the police officers who were called to the defendant's residence after receiving the defendant's report of driving alcohol have gone to the defendant's residence after obtaining the consent of the court of the wife, and thereafter, the defendant voluntarily left the place of drinking and requested a measurement of drinking, the request for measurement of drinking alcohol in this case shall be deemed to have been lawfully made within the limit of investigation.

Therefore, the court below's judgment which judged otherwise is erroneous in the misunderstanding of facts or misunderstanding of legal principles.

2. Determination

A. The driving of a motor vehicle under the influence of driving a motor vehicle, although there is no need for the relevant legal principles and prevention of danger

The measurement of drinking conducted solely on the ground that there are reasonable grounds to determine the person, has meaning as an investigation procedure to collect evidence for a criminal act of driving already conducted, and the provisions of the Road Traffic Act cannot serve as the basis for a compulsory disposition for the measurement of drinking (see Supreme Court Decision 2004Do8404, Nov. 9, 2006, etc.). Thus, in order to enter the defendant's residence for the purpose of a measurement of drinking alcohol like this case, the procedure under the Criminal Procedure Act concerning compulsory disposition under investigation must be followed.

In addition, in a case where a request for the measurement of drinking is made under an illegal arrest, it is not appropriate to evaluate the legal nature of the request for the measurement of drinking, since the illegal arrest for the measurement of drinking, etc. and the request for measurement of drinking is continued to collect evidence against the criminal act of drinking, and it is not appropriate to evaluate the legal nature of the request individually. Therefore, the series of processes should be considered as a whole, and the driver has been engaged in the driving of drinking.