In a case where the blood alcohol concentration by the respiratory tester is 0.050% and the blood alcohol concentration by blood test is 0.043%, the case holding that it cannot be concluded that the Defendant’s blood alcohol concentration at the time of driving is above the punishment level solely on the basis of the result of presumption of blood alcohol concentration (0.051%) calculated by the Prosecutor’s application of the Badmark formula and the result of examination of blood alcohol concentration by the above respiratory tester;

In a case where the Defendant’s blood alcohol concentration measurement time at 20 minutes after the Defendant’s blood alcohol level at the end drinking, 25 minutes after the end drinking, 89 minutes after the end drinking, and 0.050% after the respiratory tester’s blood alcohol level at the time of his blood alcohol level at 0.043% after blood test, the case holding that in a case where the Defendant’s blood alcohol concentration at the time of his blood alcohol level at the time of his operation cannot be determined as punishment unless the Defendant’s blood concentration at the time of his operation solely on the basis that: (a) the Defendant’s blood alcohol concentration at the time of his blood level from the time of his respiratory measurement to the time of his collection cannot be determined as the point of time from the time of his blood alcohol concentration at the time of his blood alcohol level from the time of his respiratory measurement to the point of his blood alcohol level from the time of his collection, etc., are insufficient to have probative value, and thus, each of the above blood alcohol concentration at the time of his operation cannot be determined.

Articles 41 and 107-2 of the Road Traffic Act

Defendant

Degradation

Attorney Tae-ho

The defendant shall be innocent.

Summary of Facts charged

On August 25, 2004, at around 20:25, the Defendant driven a (motor vehicle registration number omitted) net motor vehicle with a alcohol level of 0.051% (motor vehicle registration number omitted) while under the influence of alcohol during blood, and drive the said motor vehicle with a volume of about 3 km of about 160 kilometers from the bus heading around the end of the city bus No. 160 in Seo-gu, Gwangju-gu.

point of dispute

The key issue of the instant case is (1) whether blood alcohol concentration can be calculated by adding the blood alcohol concentration to the blood alcohol measurement values by blood test formula in a situation where it is impossible to determine whether the blood alcohol concentration is the rise period or the summer period, (2) whether the blood alcohol concentration can be calculated by adding the blood alcohol concentration to the blood alcohol measurement values by blood test formula, and (3) whether the blood dose measurement values by the respiratory tester and the blood test values are inconsistent.

Maz.

1. Facts of recognition;

The evidence reveals the following facts.

A. From August 25, 2004 to 20:00 on August 25, 2004, the Defendant: (a) Macju 3 World Cup was drinking and driven in Schlage; (b) around 20:20 on August 25, 2004, the Defendant was under drinking control by the Retoxic Police at the last place of the 160 head office in Gwangju Northern-dong on August 25, 2004; (c) was under drinking control by the respiratory Police; (d) around 20:25, at around 20:50, the Defendant was under drinking measurement by the respiratory measuring instrument without special measures, such as neglecting the remaining alcohol in the mouth.

B. The scope of the vehicle is 【3 and 4 months (the term of validity of correction) for the purpose of maintaining the accuracy, and the range of the vehicle is corrected by 0.050% (the lowest limit of the vehicle is 0.051% where the blood alcohol concentration is measured by the respiratory measuring instrument after the correction) which was made by the Regulatory measuring instrument of the Defendant at her respiratory level, and the last correction was made on May 10, 2004.

C. As to the Defendant’s immediate objection to the alcohol level measured by the above pulmonary measuring instrument, the Defendant demanded blood collection on August 25, 2004 and demanded blood collection on August 25, 2004. The blood alcohol level measured by blood examination was 0.043% of blood alcohol level.

(d) alcohol concentration in blood is significantly different depending on the body of each individual, the kinds of foods taken in, and the kinds of alcohol, and the maximum concentration between 30 to 90 minutes after drinking, and a decrease of approximately 0.08% to 0.030% per hour after drinking.

E. The Prosecutor calculated the alcohol concentration at 0.051% (=043% + 0.008%) of the blood alcohol concentration at 0.051% (=0.043% + 0.008%) from the time of the measurement by the respiratory tester to the time of blood collection by adding the values calculated by applying 0.008% of the minimum alcohol concentration from the time of the measurement by the respiratory tester to the time of blood collection in accordance with the above bloodmark formula to institute the instant prosecution.

2. Whether the blood alcohol concentration can be calculated by adding the amount reduced in the blood alcohol concentration to the measurement values of blood alcohol through blood examination.

Inasmuch as the reverse production method based on the Bamark formula can only be applied to the downstream period of blood alcohol concentration, under the circumstances where it is impossible to determine whether the time from the measurement date to the date of collection of blood is the rise period of blood alcohol concentration or the summer period from the date of collection of blood, the blood alcohol concentration cannot be calculated by adding the blood alcohol concentration to the post-measurement level.

The Defendant’s drinking operation time is 20 minutes after the final drinking, 25 minutes after the final drinking, and 89 minutes after the final drinking. While blood alcohol concentration is personal, the Defendant’s blood alcohol concentration from 30 to 90 minutes after drinking is recognized as above. According to the above recognized facts, it cannot be determined that the Defendant’s blood concentration at the time of driving exceeds 0.05% from the date of the measurement by blood testing to the date of blood collection. The Defendant’s blood alcohol concentration at the time of driving can not be determined as 0.05% or more from the date of the measurement by blood testing to the date of blood collection.

Therefore, the defendant cannot be punished for the blood alcohol concentration of 0.051% (=043% + 0.008%) calculated by adding 0.043% of the blood alcohol level to 0.051% of the blood alcohol level calculated by applying 0.008% of the reduced blood alcohol level from the time of the measurement of the pulmonary measuring device to the time of the collection of blood according to the pulmonary marks formula.

3. Judgment of evidence in case of disagreement between the breath measurement values by a breath tester and the measurement values by blood test; and

Considering the circumstances that, in a case where the pulmonary measuring apparatus differs from the pulmonary measuring apparatus, the measurement by the pulmonary measuring apparatus may have problems in the accuracy and reliability of the result of the measurement, such as the state of the measuring instrument, measuring method, degree of cooperation between the other party, etc., barring any special circumstances that make it difficult to believe the result of the measurement by blood gathering, such as artificial manipulation in the course of blood collection or examination, interference with the related party’s error, etc., it would conform to the empirical rule to regard the pulmonary measuring apparatus as the pulmonary measuring apparatus as the pulmonary measuring apparatus more adjacent to the blood alcohol concentration at the time of the measurement than the pulmon

In the instant case, considering that the breath alcohol level by the breathr is 0.050% higher than that of punishment even if the breathr’s alcohol level was corrected, the breathr of this case remains more than 0.01%. The breathr of this case does not remain more than 4 months and more than 15 days. The breathr of this case measured without special measures, such as restricting the Defendant’s remaining alcohol in the mouth. The Defendant’s time of breathr’s breathr’s breathr’s breathr measurement is 20 minutes after the final alcohol, and the breathr’s breathr’s breathrher alcohol level reaches the highest concentration between 30 to 90 minutes after the breathr’s breathr’s breathr’s breathr’s breathr’s breathr’s breath test without any justifiable reason.

Therefore, the defendant cannot be punished even with the alcohol level of 0.050% which is the blood alcohol level by the pulmonary measuring apparatus.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of crime, and thus, the court acquitted the defendant under the latter part of Article 325

Judges O Young-young