The judgment of the court below is reversed.

Of the facts charged in this case, it is not guilty of violating the Road Traffic Act (drinking driving).

1. Summary of grounds for appeal;

A. In fact and legal principles, the Defendant did not go through the procedure before the alcohol measurement, and the police officer in charge did not have an opportunity to raise an objection to the measurement result of drinking, such as putting his/her vehicle on his/her own part, measuring the result of drinking again, or requesting blood collection, on the ground of the numerical value calculated by applying the above dmark formula, the lower court recognized the fact that the Defendant driven a motor vehicle under the influence of alcohol exceeding 0.05% of alcohol level on the ground of the above dmark figure. In so determining, the lower court erred by misapprehending the facts and misapprehending the legal principles of violation of the law, and failing to err by misapprehending the legal principles.

B. The sentence of the lower court that is unfair in sentencing (7 million won) is too unreasonable.

2. Determination

A. The measurement of alcohol concentration in blood by a breath measuring instrument of relevant legal principles is conducted to measure the breath’s alcohol concentration in blood by absorbing in the breath and thereby pulmonary air. Thus, since a considerable time has not elapsed from the final drinking time, or when the breath’s alcohol concentration in blood is measured together with the breath air discharged from the waste, such as tream, earthtotooth, stopy iron, and air cleaning, the breath in the mouth with alcohol ingredients, and the blood on the upper part of the breath’s body, etc., if the breath’s blood concentration in blood is measured together with the breath air discharged from the waste, it can appear that the breath’s level is higher than the actual blood alcohol concentration. Thus, the result of the measurement of alcohol concentration in blood conducted by the breath measuring instrument without the breath’s equipment into the water.

It cannot be readily determined, and rather, suspicions that the measurement value by the respiratory measuring instrument may exceed the alcohol level during blood cannot be ruled out (Supreme Court Decision 2005Do7034 Decided November 23, 2006; Supreme Court Decision 2009Do64 Decided June 24, 2010).