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The prosecutor's appeal is dismissed.
Reasons
1. According to the summary of the grounds for appeal: (a) the Defendant was discovered at around 01:45 on October 14, 2012 in the crackdown on drunk driving on October 14, 2012; (b) the time when the Defendant finally drinks at around 01:15, Oct. 14, 2012; (c) the time when the blood alcohol concentration was measured by a respiratory alcohol measuring instrument at around 02:03, Oct. 14, 2012; and (d) the measured blood alcohol concentration at around 02:05% on Oct. 14, 2012; and (c) the blood alcohol concentration at around 0.05% in consideration of the error of the measuring instrument itself; and (d) the Defendant sufficiently recognized the fact that the standard level was adjusted to lower 5% on Oct. 14, 2012 in consideration of the error of the measuring instrument.
Nevertheless, the lower court was in the state of 0.05% of the blood alcohol concentration around 01:45 on October 14, 2012, when the Defendant was exposed.
Since the court below acquitted the defendant of the facts charged in this case on the ground that it cannot be readily concluded that there was a state of 0.05% or more, the court below erred in misunderstanding of facts.
2. Determination
A. On October 14, 2012, the Defendant, as C driver, driven the said vehicle while under the influence of alcohol content of 0.050% from the Mangman High School located in Changwon-si, Changwon-si to the front day of the Japanese High School located in the same culture zone from the Mangman High School located in the same Gu.
B. The lower court’s determination (1) cannot be readily concluded that the blood alcohol concentration at the time of actual driving exceeds the penal standard, even if the blood alcohol concentration measured at the time when driving was completed at a considerable time after the completion of the operation, even though it is difficult to determine whether the blood alcohol concentration at the time of actual driving is an increase in the blood alcohol concentration, or it is difficult to determine whether the blood alcohol concentration at the time of actual driving exceeds the penal standard.
There are differences for each individual.