[1] The elements for the establishment of the crime of non-compliance with the measurement of alcohol under Article 107-2 Item 2 and Article 41 (2) of the Road Traffic Act, and the standard for determining whether there are reasonable grounds to recognize that the person is under the influence of alcohol

[2] In a case where a drinking-free test was conducted in a drinking-free test, whether it can be deemed that there is a reasonable ground to recognize that a drinking-free test was conducted immediately (negative)

[3] The case holding that even though the defendant was requested to take a alcohol test on the ground that it is difficult to view that there is a considerable reason to recognize that the defendant was in a state of drinking above 0.05% of blood alcohol by the person who was punished for the crime of drinking alcohol at the time when the defendant was requested to take a alcohol test, the defendant's act of failing to comply with the request cannot be deemed to constitute a crime of non-compliance with the alcohol test under Articles 107-2

[1] The crime of non-compliance with the measurement of alcohol under Article 107-2 subparagraph 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 "under the influence of alcohol" in this context refers to a person under the influence of alcohol at least 0.05%, who is punished for the crime of drinking under the influence of alcohol, and thus, the crime of non-compliance with the measurement of alcohol refers to a person under the influence of alcohol at least 0.05%. Thus, in order to establish the crime of non-compliance with the measurement of alcohol, there must be reasonable grounds to recognize that the driver is under the influence of alcohol at least 0.05%, but at least 0.05% of the blood alcohol level at the time of the request for the measurement of alcohol. Furthermore, whether there are reasonable grounds to recognize that the person is under the influence of alcohol

[2] Even though a drinking-free measuring instrument used before the demand for a breath test was made to the sobreath test, considering the fact that the sobreath test currently used is reactioned with the blood alcohol concentration of 0.02%, it cannot be deemed that there are reasonable grounds to recognize that the driver is in a sobreath test with a blood alcohol concentration of 0.05% or more, and it should be determined whether there are reasonable grounds to recognize that the driver is in a sobreath test in light of the objective circumstances such as the appearance, attitude, and behavior of the driver.

[3] The case holding that even though the defendant was requested to take a alcohol test on the ground that it is difficult to view that there is a considerable reason to recognize that the defendant was in a state of drinking above 0.05% of blood alcohol by the person who was punished for the crime of drinking alcohol at the time when the defendant was requested to take a alcohol test, the defendant's act of failing to comply with the request can not be deemed to constitute a crime of non-compliance with the alcohol test under Articles 107-2

[1] Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act / [2] Article 41(2) of the Road Traffic Act / [3] Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act

[1] [2] Supreme Court Decision 2001Do5987 decided Jun. 14, 2002 (Gong2002Ha, 1737) / [1] Supreme Court Decision 99Do2899 decided Dec. 28, 1999 (Gong2000Sang, 427) Supreme Court Decision 200Do6026 decided Aug. 24, 2001 (Gong201Ha, 2141)

Defendant

Prosecutor

Daejeon District Court Decision 2002No1094 Delivered on November 8, 2002

The appeal is dismissed.

We examine the grounds of appeal.

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 a police officer's measurement under Article 41 (2) of the same Act. The term "under the influence of alcohol" refers to a person under the influence of alcohol at least 0.05% in blood alcohol level, which is punished for the crime of drunk driving. Thus, in order to establish the crime of non-compliance with the measurement of alcohol level, the driver does not necessarily have to be in the state above 0.05% in 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 above 0.05% in blood alcohol level at least. Furthermore, whether there are reasonable grounds to recognize that the person is under the influence of alcohol should be determined by comprehensively considering the objective circumstances such as the appearance, attitude, and driving behavior of each individual driver at the time of the request for the measurement of alcohol level (see Supreme Court Decision 209Do2899, Dec. 28, 2004).

Therefore, even though a drinking-free machine used before the demand for a breath test was made at the sobreath test, considering the fact that the sobreath test currently used is reactioned from the blood alcohol concentration of 0.02%, it cannot be deemed that there are reasonable grounds to recognize that the driver is in a sobreath test with a blood alcohol concentration of 0.05% or more, and it should be determined whether there are reasonable grounds to recognize that the driver is in a sobreath test in light of the objective circumstances such as the appearance, attitudes, and behavior of the driver (see Supreme Court Decision 2001Do5987, Jun. 14, 2002).

According to the records, the defendant was found to have not complied with a drinking test at around 22:16, August 15, 2001, which was on the day of the instant case, at around 22:16, even though he responded to a drinking test at around 22:16, but he was found to have failed to comply with a police officer's request for a drinking test at his respiratory level. Even according to the statement of this stone, which is a police officer controlling the defendant at the time, there was a drinking test at the time, so the defendant was suspected of driving at the drinking test at the time, and there was no suspicion that he made a drinking test at the time. Furthermore, even if the defendant responded to a drinking test at around 22:41, which was 25 minutes after the first request for a drinking test at around 20:0,032% of the blood alcohol level, and it is difficult to recognize that the defendant had no more objective reason to recognize that he was under the influence test at the time of the first request for a drinking test at least 10% of alcohol level in this case.

Therefore, the judgment of the court below that acquitted the defendant of the facts charged of this case is correct in its conclusion and it cannot be said that there is an error of law by misunderstanding the legal principles as to the crime of non-compliance with the alcohol measurement under the Road Traffic Act

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-in (Presiding Justice)