The probative value of the result calculated by applying the most favorable reduction per hour to the defendant in estimating the blood alcohol concentration at the time of driving by the Badmark formula.

If it is not possible to measure blood alcohol level by testing the driver's blood, breath, etc. immediately after driving, it can be presumed that blood alcohol level at the time of driving as a result of a veterinary method using the so-called dicmark formula. In this case, using the dicmark formula, the dic acid formula is based on the blood alcohol concentration measured after a certain time from a specific driving point of time, and the calculation of blood alcohol concentration at the time of driving is made by adding the dic decomposition to the blood alcohol concentration after the driving time calculated according to the decrease due to the decomposition of alcohol at the time after the driving, unless there are special circumstances that prove that the 0th alcohol concentration at the time of driving could have an impact on the decrease of alcohol level per hour, but it is sufficient that the 0.03% from the 0.08% from the 08% from the dicmark formula at the time of driving, the 0.0% from the 0.08% from the dicmark formula at the time of driving.

Articles 41 and 107-2 subparag. 1 of the Road Traffic Act, Articles 307 and 308 of the Criminal Procedure Act

[Plaintiff-Appellant] Plaintiff 2001Na2823 delivered on August 21, 2001 (Gong2001Ha, 2128)

Defendant

Defendant

Daejeon District Court Decision 2004No2041 Delivered on November 23, 2004

The appeal is dismissed.

We examine the grounds of appeal.

If it is not possible to measure blood alcohol level by testing the driver's blood or pulmonary sample immediately after driving, it can be presumed that blood alcohol level at the time of driving as a result of a veterinary method using the so-called dicmark formula. In this case, using the dicmark formula, it is based on the blood alcohol concentration at the time of driving measured after a certain time from a specific driving point of time. In addition to the blood alcohol concentration at the time of driving after adding the dic decomposition to the blood alcohol concentration at the time after driving, calculated according to the decrease due to the decomposition of alcohol at the time after driving, the driver's level of normal alcohol, physical quality, drinking speed, and the degree of physical activities after drinking, it can affect the reduced alcohol level per hour, but it is sufficient that 20.0% from 03% to 0.08% from the 10.08% from the dicmark formula at the time of driving, it is sufficient that the 20.0% from the 0.0.08% from the 0.0% from the 0.0.08% from the 0.0.0% from the above dec.

According to the reasoning of the judgment below, the court below found the defendant guilty of the facts charged that the defendant driven a motor vehicle under the influence of 0.051% of alcohol level at the time of the last driving, on the basis of the defendant's blood alcohol level 0.008% which is revealed as a result of blood sampling by blood sampling method, based on the defendant's blood alcohol level 0.046%, which is revealed as a result of blood sampling by the defendant's blood sampling method, and the blood alcohol level at the time of driving is 0.0517% which is the most favorable to the defendant. In light of the above legal principles and records, the court below found the defendant guilty of the facts that the defendant driven a motor vehicle under the influence of 0.051% of alcohol level in blood alcohol level. In light of the above legal principles and records, the judgment and judgment of the court below are just, and there is no error of law by misconception of facts due to violation of the rules of evidence or misunderstanding of legal principles as to the recognition of alcohol level in blood transfusion form

In addition, the argument in the grounds of appeal, such as that the Bamark formula shall be applied only when it is delayed due to the reasons attributable to the person under whose blood alcohol level was measured, and that the breath measurement by the breath inasmuch as the breathr performed the blood sampling method, the breath test by the breathr shall not be admissible. The breamark formula is nothing more than an independent argument in light of the fact that the driver under the influence of alcohol was merely a breath method in accordance with the experience rules, and it is therefore groundless

In addition, the argument that the punishment is too heavy in this case for which a fine is imposed cannot be a legitimate ground for appeal.

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

Justices Kim Yong-dam (Presiding Justice)