[1] The case where the pulmonary measuring instrument is required to be measured by means of blood collection without any procedure for measuring the pulmonary measuring instrument

[2] Whether a police officer should notify the main driver who refuses to take a pulmonary test of the existence of a method of measuring blood (negative)

[1] Article 41(2) and (3) of the Road Traffic Act is interpreted as a case where it is difficult or extremely difficult to measure a respiratory measuring instrument due to a driver's physical disorder, etc., or where a driver requests a measurement by blood sampling from the beginning because he/she has failed to perform a measurement by the pulmonary measuring instrument, etc., he/she shall omit the procedure of the measurement by the pulmonary measuring instrument and proceed to the measurement by blood gathering. In this case, the act of failing to comply with the pulmonary measuring instrument cannot be deemed as a non-compliance with the

[2] It cannot be said that a police officer has a duty to inform a driver who has not complied with the measurement by the respiratory tester without any special reason that the police officer has a method of measurement by blood collection and ask him/her whether or not he/she has the choice.

[1] Article 41 (2) and (3) of the Road Traffic Act / [2] Article 41 (2) and (3) of the Road Traffic Act

Defendant

Defendant

Gwangju District Court Decision 2002No266 delivered on July 11, 2002

The appeal is dismissed.

원심은 채택 증거에 의하여, 피고인이 객관적으로 음주운전을 하였다고 인정할 만한 상당한 이유가 있는 상태에서 경찰공무원이 피고인에게 호흡측정기에 의한 음주측정을 요구하였으나, 피고인은 약 21분간 불대에 입을 대고 부는 시늉만 하면서 입을 떼버리는 것을 반복하여 호흡측정기에 음주측정수치가 나타나지 아니하도록 한 사실을 인정하는 한편, 피고인이 그 변소와 같이 호흡장애로 인하여 음주측정기 불대를 정상적으로 불 수 없었다고 볼 자료는 없다고 하여, 정당한 사유 없이 호흡측정기에 의한 음주측정에 실질적으로 불응한 피고인의 행위는 음주측정불응의 죄에 해당한다고 판단하였다.

In light of the records, the judgment of the court below is just and it is not erroneous in the misapprehension of the legal principle due to the violation of the rules of evidence, and there is no error in the misapprehension of the legal principle. The interpretation of Article 41 (2) and (3) of the Road Traffic Act is interpreted, where it is extremely difficult or it is extremely difficult for a driver to measure the respiratory level due to the reasons such as the driver's physical disorder, etc., or where a driver requests a measurement due to blood collection from the beginning, he must omit the procedure for the pulmonology and immediately proceed to the measurement by blood collection. In this case, it is not possible to see that a driver who fails to comply with the pulmonology measurement by the pulmonology cannot be viewed as a non-compliance with the pulmonology measurement. However, in light of the records, it is not recognized that there is any special circumstance in this case, and on the other hand, it cannot be accepted as the ground of appeal assigning this error.

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

Justices Kim Ji-dam (Presiding Justice)