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The prosecutor's appeal is dismissed.
Reasons
1. The gist of the grounds of appeal is as follows: (a) the Defendant was driving from 18:00 to 20:49 much more than 2 hours after commencing the initial drinking; (b) so, it cannot be readily concluded that the blood alcohol concentration at the time of driving was in a rise season; (c) even if the Defendant was in a rise season, in light of the time and interval between driving and measurement, the measured blood alcohol concentration, drinking time and drinking volume, traffic accident circumstances, and the Defendant’s behavior at the time of the accident, etc., the Defendant’s driving of the vehicle while under the influence of alcohol at 0.072% (at least 0.05%, which is the standard subject to punishment).
On a different premise, the lower court's dismissal of prosecution against the violation of the Road Traffic Act (driving) and the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, which affected the conclusion of the judgment, by misunderstanding the facts.
2. Determination
A. The lower court acknowledged the following premise based on the evidence duly admitted and investigated by the lower court. ① The Defendant d’s text messages from around 18:00 on May 24, 2018 to 30 on the same day, sent the text messages from the Defendant’s wife to the Defendant’s wife at around 20:23, and the Defendant started driving the Defendant’s vehicle at around 20:30 on around 20:30 on the same day. ② The Defendant, at around 20:49, conflicted the victim E (FK5-si) prior to the Defendant’s vehicle at the distribution price of the Seocho-gu Seoul, Seocho-gu Distribution Complex on the same day.
③ The victim E reported 112 immediately after the accident, and the police officer called out, around 21:25 on the same day, was measured at 0.058% of the blood alcohol concentration as a result of the Defendant’s respiratory measurement on the same day.
At the time, the Defendant demanded the collection of blood as to the above measurement result, and the result of the blood collection and measurement at 21:58 on the same day was measured with 0.102% of the blood alcohol concentration.
(4)