[1] The degree of proof required for the recognition of the relevant presumed fact in the calculation of the degree of exploitation by using the Ba mark formula

[2] The case holding that it may be deemed that there is a strict proof of the volume of alcohol, drinking time, and body body, which is a premise for the application of the Hemmark formula, and that the calculation of the blood alcohol concentration by inserting the most favorable value to the defendant with respect to other factors affecting the blood alcohol concentration, has reached a sufficient proof of the facts charged of the drunk driving on the ground that it considerably exceeds 0.05% of the blood alcohol concentration in accordance with the Hemar formula

[1] If blood or pulmonary samples of a driver immediately after driving are examined and the degree of blood alcohol level can be measured, the degree of blood alcohol level at the time of driving can be presumed as a result of veterinary calculation using the so-called dicmark formula. However, in the event that the defendant uses the empirical rule such as scientific formula to find out whether the constituent elements of the crime exist, it is required to provide strict proof of individual and specific facts. In the case of the dicmark formula, the quantity of alcohol taken in, drinking time, and body weight need to be applied, so it is necessary to establish such premise. Furthermore, the method of presumption of blood alcohol density according to the dicmark formula requires strict proof to determine the degree of the average degree of alcohol level caused by the absorption of alcohol level and time, the degree of the influence of alcohol level at which the defendant can reasonably have the influence on the blood alcohol level at the time and time, the degree of congradation of alcohol level at which the defendant's maximum degree of influence on the blood alcohol level can easily change, the degree of influence of alcohol level at which the defendant's alcohol level and degree.

[2] The case holding that there is room to view that the blood alcohol level, time of drinking, and body body, which are the premise for the application of the Hemmark formula, have strict proof, and that the blood alcohol level is considerably exceeded 0.05% as a result of calculating the blood alcohol level according to the Hemar formula, on the ground that there is a sufficient proof of the facts charged of the driving under the influence of alcohol level on the grounds that the blood alcohol level is considerably exceeded 0.05%

[1] Articles 307 and 323 (1) of the Criminal Procedure Act / [2] Articles 307 and 323 (1) of the Criminal Procedure Act, Article 41 of the Road Traffic Act, Article 31 of the Enforcement Decree of the Road Traffic Act

[1] [2] Supreme Court Decision 2000Do860 delivered on November 10, 2000 / [1] Supreme Court Decision 99Do128 delivered on June 27, 2000 (Gong2000Ha, 1798) Supreme Court Decision 2000Do307 delivered on October 24, 200 (Gong200Ha, 2473)

Defendant

Prosecutor

Attorney Jeong Tae-sung

Seoul High Court Decision 99No2577 delivered on December 1, 1999

The non-guilty part of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

1. Summary of the facts charged

On June 27, 199, from around 00:10 to 03:30, the Defendant driven 50c tex tex to the vicinity of the second wheels apartment located in the name of the original city at the front of the Sinju-si in the middle of the Sinju-si in the state of alcohol concentration of 0.469%.

2. The judgment of the court below

According to the reasoning of the judgment of the court below, the court below reversed ex officio the judgment of the court of first instance which found the above facts charged guilty and acquitted the defendant.

(1) According to the investigation records, if it is revealed that the defendant was under investigation into rape injury suspicion that he driven a stobane while drinking alcohol, police officers are presumed to have applied so-called so-called 0.469% computed by applying the so-called 's mark' formula on the basis of the defendant's statement that the defendant 2 Hobbbes (900m) dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium dynasium eb

(2) If a person drinks alcohol, the decomposition process becomes offset when the blood alcohol concentration has risen for a certain period while absorptioning alcohol, and the blood alcohol concentration has decreased. With respect to the correlation between the quantity of consumed alcohol and the blood alcohol concentration in the 1930s, the so-called Hexmark formula proposed by the German Fdmark in the 1930s is indicated as "C =a/(p xr)". Here, C is the blood alcohol concentration, “A”, “P”, and “h”, as the body body water is not composed of blood absorbing the alcohol, and r is composed of non-high-form materials or body parts, and thus, it is considered that the average value is based on the distribution of women from 00 to 06.6 to 008.6.6.686.68 of the average value is based on the results of the above Dmark 1932 research.

(3) Meanwhile, in the case of calculating the blood alcohol level after a certain period of time has elapsed since the introduction of the concept of time in the Bamark formula, the phrase “Ct =(a/(p) ?bt” is established. Here, b indicates the volume of alcohol decomposition per hour and the value of b is distributed from 0.08% to 0.030% per hour according to the individual to indicate the time that has passed after drinking, and the average value is known to be 0.015% per hour.

(4) The above official premise condition is that the testee drinks only alcoholic beverages on a temporary basis, rather than drinking with other food, without having to do so at a time. It is generally different from the habitor that the average person drinks alcoholic beverages, and the kind and quantity of food taken at a speed prior to drinking or with drinking, in fact, is known that the kind and quantity of food taken in together with alcohol would have a significant impact on the firefighting engine to absorb alcohol, and is also an important factor to determine the blood alcohol concentration, such as the kind of alcohol, the physical condition of alcohol, the frequency and quantity of alcohol drinking.

(5) Nevertheless, without considering such difference in individual characteristics and specific circumstances, the Bamark formula only analyzes the test results conducted for a certain number of adults and simplifys the numerical value. Even according to the results of the experiment conducted under the same conditions, even if they were conducted under the same conditions, r's value in the Bamark formula is more than 50% according to an individual, and b's value is 4 times or more, so it is permissible for an individual to make a strict error. Thus, the Bamark formula cannot be considered as guilty material for a specific defendant in the criminal trial requiring strict certification of blood alcohol concentration calculated under the above formula. Thus, the Bamark formula cannot be considered as guilty without any other evidence to acknowledge the above facts. Thus, the court of first instance erred by misapprehending the facts against the rules of evidence.

3. Judgment of the Supreme Court

(1) If it is not possible to examine blood or pulmonary samples of a driver immediately before driving and measure the blood alcohol level, the blood alcohol level at the time of driving can be presumed as a result of scientific calculation by using the so-called dicmark formula. However, in the event that an empirical rule, such as scientific formula, is used to identify the existence of elements constituting an offense, strict proof of individual facts should be required. In the case of the dicmark, it is necessary to establish such premise in light of the quantity of alcohol taken in, drinking time, body weight, etc., as the material for its application requires strict proof to recognize that such premise is necessary (see Supreme Court Decision 9Do128, Jun. 27, 200). Furthermore, the presumption of blood alcohol concentration at the dicmark formula, which means that the defendant can reasonably affect the blood alcohol concentration at an average level of time during which the alcohol level can have an influence on the blood alcohol level at the time when he/she is found to have a certain degree of influence on the blood alcohol level, and that it is necessary to determine the maximum alcohol concentration at the time of alcohol level.

(2) However, according to the records, the defendant 5th day from June 26, 199 to 22:00. The defendant 5th day from June 26, 199 to 30th day from June 26, 199. The defendant 5th day from 199 to 30th day from 2:00. day from 5 second day from 199. day from 5th day from 199. day from 200 day from 199. day from 30 day from 40 day from 199. day from 20 day from 20 day from 20 day from 19. day from 20 day from 20 day from 20 day from 20 day from 20 day from 19. day from 20 day from 20 day from 20 day from 5th day from 196 day from 20 day from 20% from 5th day from 30% from 4th day from 20 day from 20 day from day from 4 day from day from day from day. day from day

(3) Therefore, the court below's decision that the above facts charged constitute a case where there is no proof of a crime on the ground that there is no evidence on the above facts charged, even though there is no other assertion from the defendant as to other factors that may affect the blood alcohol level, does not err in the misapprehension of legal principles as to the state of drunk under Article 41 of the Road Traffic Act, or in the misapprehension of legal principles as to the state of drunk under Article 41 of the Road Traffic Act, which affected the conclusion of the judgment, and the argument

4. Conclusion

Therefore, by accepting the prosecutor's appeal, the non-guilty part of the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Han-gu (Presiding Justice)