2011Gudan4287 Revocation of revocation of driver's license

OO******************

Address omitted

Daegu Commissioner of the Local Police Agency

Litigation Performers***

November 25, 2011

December 30, 2011

1. On July 26, 201, the Defendant revoked the revocation of the license granted to the Plaintiff on July 26, 201.

3. The disposition described in paragraph 1 shall cease to be effective until the judgment of this case becomes final and conclusive.

The text of paragraph (1) is as follows.

1. Details of the disposition;

A. On June 23, 201, at around 01:40, the Plaintiff: (a) 1:0 on the road in front of the Daegu Suwon-dong Public Security Center located in Man-dong, Daegu-dong 1:00, and (b) ******************* due to a traffic accident in which heading vehicles are loaded (hereinafter referred to as the “accident”) and resulting in an injury, such as climatic and scard salt, which requires approximately three weeks of treatment. As a result of the measurement of alcohol at the emergency room of the Gyeonggi-do University Hospital around 03:07, the Plaintiff’s blood alcohol concentration was 0.049%.

B. On July 26, 2011, the Defendant issued a disposition to revoke the Plaintiff’s second-class ordinary driver’s license as of August 31, 2011 (hereinafter referred to as the “instant disposition”) on the ground that the Plaintiff’s second-class ordinary driver’s license as of August 31, 201 caused a traffic accident that occurs while driving a vehicle at a level of 0.053% in the blood alcohol concentration and 0.04% in the blood alcohol concentration (i.e., 0., 0.08 x 37/60%) with the blood alcohol concentration at the time and 0.04% in the blood alcohol concentration at the time (i.e., 00 x 37/60). [Grounds for recognition] of no dispute, Gap’s 1, 3, 5, 11, 11 through 7 evidence (including the serial number), the purport of the entire pleadings, as a whole, and the purport of arguments.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The degree of Plaintiff’s drinking, recognized by the Defendant, is subject to the Tramark formula, and the Plaintiff’s blood alcohol concentration of 0.053% exceeds 0.05%, which is the standard for the control of drunk driving, and is in excess of 0.03%, and when considering the possibility of error in the estimates based on the Madmark formula, the instant disposition by such inaccurate measurement mechanism is unlawful.

(2) In addition, the Plaintiff operates a Korean-style restaurant with her husband, and the Plaintiff is also in charge of vehicle delivery, parking management, etc. due to the inconvenience of her husband's body. If the Plaintiff's driver's license is revoked, the operation of the restaurant becomes difficult, traffic accidents and drinking driving power did not exist, and the likelihood of error in the estimated values by the Tramark formula, the instant disposition is an illegal disposition that deviates from and abused the discretion of the Plaintiff.

B. Determination

(1) Judgment on the plaintiff's first argument

(A) On the basis of the blood alcohol concentration measured after a certain time from a specific driving point of time by using the dmark formula, and in estimating the blood alcohol concentration at the time of driving by adding a certain degree of 10 to the blood alcohol concentration after the time of driving calculated due to the decline due to the decomposition or extinguishment of blood alcohol, various factors such as the degree of normal alcohol, physical quality, drinking speed, and the degree of physical activities after drinking may affect the decline of blood alcohol per hour. Therefore, in applying the above impacts, the average reduction rate shall not be applied by readily concluding that the skin is average, and, if necessary, it shall be determined that the blood alcohol concentration exceeds 10.20 percent of blood alcohol concentration at the point of 200 after calculating the 5th alcohol concentration (see, e.g., Supreme Court Decision 200Do307, Oct. 24, 200).

(B) According to the above evidence in this case, the grounds for the Defendant’s application of the Ba mark formula to the Plaintiff are as indicated below (see subparagraph 3-5 of the evidence, e.g., the date of final drinking time, drinking time, etc., are the same as that of June 23, 201, and thus, the date is omitted).

A person shall be appointed.

According to the above table, the defendant is based on the blood alcohol concentration of 03:07 measured in 03:07, after 127 minutes (87 minutes from the time of the accident, 01:40 minutes) from the final drinking time, and on the premise that the blood alcohol concentration of 02:30, the time when 90 minutes have elapsed from the final drinking time, and the blood alcohol concentration of 02:30, the time when 90 minutes have passed from the final drinking time, after the blood alcohol concentration of 37 minutes after the plaintiff's blood alcohol concentration at the time of the measurement of alcohol level was reduced (127 minutes - 90 minutes). The defendant's calculation method at the time of the accident is the same 0.053% (0.049% +08.08% from the time of the accident x 37/60 minutes from the point of the accident at the time of the accident, which is the one of the plaintiff's blood alcohol concentration at the time of the accident.

However, the defendant's calculation is reasonable in that the blood alcohol concentration from 01:00 to 02:30 minutes passed since the 30-90 minutes passed since the ordinary alcohol level was the highest level after the 30-90 minutes passed since it was the most favorable premise for the plaintiff, namely, when calculating based on the fact that the 90-minutes passed after the last alcohol level, the blood alcohol concentration of the plaintiff reaches the highest level after the lapse of 90 minutes. However, the time when the plaintiff's blood alcohol concentration reaches the highest level is the time of the plaintiff's final alcohol alcohol level from 01:0 to 90 minutes. However, the accident time of this case was at 01:40, which was 40 minutes after the final alcohol level (50 minutes before the final alcohol level reached the highest level) from the final alcohol level, so it should be considered that the defendant recognized it as the blood alcohol concentration of this case, which was excessive.

(C) Furthermore, the Plaintiff’s blood alcohol concentration at the time of the instant accident is approximately 0.023% (=053 0.050 x 40/90) and is below the standard of punishment. The Plaintiff’s blood alcohol content at the time of the instant accident is considerably below the standard of punishment when comprehensively considering the following: 50 minutes of the time from the instant accident to the time of reaching the above highest level; 37 minutes of the total time when blood alcohol concentration was added up; 57 minutes of the time when blood alcohol concentration was added up; 50% of the total time after the completion of drinking; 5% of the blood alcohol concentration at the time of the instant accident until the highest level; 40.50% of the blood alcohol concentration at the time of the instant accident. In addition, it is difficult to conclude that the Plaintiff was in a state of taking alcohol content above 0.050% which is the standard of punishment at the time of the instant accident.

(D) Accordingly, the Defendant’s disposition of this case is unlawful.

(2) Judgment on the second argument by the Plaintiff

Even if the plaintiff's first assertion is not acknowledged, the criteria for administrative disposition for driver's license under [Attachment Table 16] under Article 53 (1) of the Enforcement Rule of the Road Traffic Act are merely an internal guidelines of administrative agencies that provide detailed matters such as criteria and methods for disposal in the revocation of driver's license and suspension of validity of driver's license, and it is not externally binding on the people or the court. Thus, the legality of the disposition for revocation of driver's license should not be determined only by administrative disposition criteria for driver's license.

The judgment should be made. Since the plaintiff acquired the driver's license of this case, the plaintiff's driver's license of this case has no record of causing the drinking driving, traffic accident, measuring the blood alcohol level with the plaintiff 0.049% which falls short of the punishment standard, and 0.053% of the blood alcohol level calculated by adding the decrease rate of blood alcohol level with the above-mark formula to the measuring values, which is the punishment standard 0.05%, is less than the punishment standard 0.05%, and other circumstances revealed in the oral proceedings of this case, such as the situation and purpose of the plaintiff's drinking driving, power, relation between the plaintiff's occupation and driver's license, or the degree of disadvantage suffered by the plaintiff due to the disposition of this case, the cancellation of the plaintiff's driver's license of this case is unlawful, even if the plaintiff caused personal traffic accident after driving under the influence of 0.053% after drinking, considering the necessity of public interest to prevent the harm of the motor vehicle accident caused by drinking driving.

3. Suspension of the disposition of this case;

On the other hand, according to the records of this case, it is recognized that the execution of the disposition of this case was urgently required to prevent irrecoverable damage caused to the plaintiff, and there is no other evidence to recognize that the suspension of execution is likely to have a significant impact on the public welfare. Thus, the disposition of this case shall be suspended ex officio until the decision of this case

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Ginsung fever