The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. At the time of the instant case, the Defendant was found not to have been faced with water before measuring the Defendant’s blood alcohol concentration as a respiratory measuring instrument. In such a situation, the Defendant’s blood alcohol concentration was measured at 0.085%.

The judgment of the court below which found the defendant guilty on the basis of the blood alcohol concentration measured by the pulmonary measuring instrument while the person was not living in his/her place of living in water is unreasonable.

B. The sentence imposed by the lower court on the grounds of unreasonable sentencing (1.5 million won of a fine) is too unreasonable.

2. Determination

A. In a case where the measurement of a blood alcohol concentration by a respiratory measuring device as to a mistake of facts is conducted by measuring that the alcohol contained in blood is discharged into the respiratory air by absorbing in the breath, passing through the waste while the alcohol contained in blood. Thus, in a case where a considerable time has not elapsed from the final drinking time, or where the alcohol content remains in the mouth due to the use of trantototos, earth, stotos, dental steel, and oral pans, etc., and the blood contained in the upper part of the body are measured together with the respiratory air discharged from the waste, it may show a higher level of alcohol concentration than the actual blood alcohol concentration. Thus, it cannot be ruled out that the blood alcohol concentration by a respiratory measuring instrument without the breath in which the breath measuring instrument did not put into the body part, or that the blood alcohol concentration by the respiratory measuring instrument alone cannot be readily concluded to be the same as the blood alcohol concentration, or that the blood alcohol concentration by the breath measuring instrument may be higher than the blood alcohol concentration.

(see, e.g., Supreme Court Decision 2005Do7034, Nov. 23, 2006). However, in a case where there are no circumstances to deem that the remaining alcohol and alcohol content in the mouth with alcohol content, and blood in the upper part of the body is likely to be measured together with the pulmonary air discharged from the waste, the pulmonary measuring instrument is under the influence of the pulmonary measuring instrument under the influence of the pulmonary measuring instrument.