The defendant's appeal is dismissed.

1. The summary of the grounds for appeal (misunderstanding of the facts and misapprehension of the legal doctrine) at time between the Defendant’s driving time and the respiratory measurement time, and at that time, the alcohol concentration in the blood was increased. Therefore, the Defendant’s blood alcohol concentration in the blood at the time of the respiratory measurement cannot be deemed as the blood concentration in the blood at the time of driving, and thus, the Defendant’s blood alcohol concentration was above 0.05% at the time of driving.

Although it is difficult to see difficulties, the Defendant was driven under the influence of alcohol with a concentration of not less than 0.05% and less than 0.10% in blood.

The judgment of the court below is erroneous by misapprehending the facts and violating the rules of evidence.

2. Determination

A. The Defendant and his defense counsel asserted the same purport as the grounds for appeal in the lower court’s judgment, which is, the lower court’s legal doctrine as follows, i.e., where the time interval between the time of drinking driving and the time of measuring alcohol concentration in blood, and at that time, appears to increase the alcohol concentration in blood.

Even if such circumstance alone makes it impossible to prove that the alcohol concentration at the time of actual operation exceeds the standard value of punishment.

shall not be deemed to exist.

In such a case, the punishment level was higher than the standard level at the time of driving.

볼 수 있는지 여부는 운전과 측정 사이의 시간 간격, 측정된 혈 중 알코올 농도의 수치와 처벌 기준치의 차이, 음주를 지속한 시간 및 음주량, 단속 및 측정 당시 운전자의 행동 양상, 교통사고가 있었다면 그 사고의 경위 및 정황 등 증거에 의하여 인정되는 여러 사정을 종합적으로 고려하여 논리와 경험칙에 따라 합리적으로 판단하여야 한다( 대법원 2013. 10. 24. 선고 2013도 6285 판결 참조). 』를 토대로, 다음과 같은 사정, 즉 『⑴ 피고인은 2015. 10. 2. 22:30 경부터 다음날 01:22 경까지 술을 마셨고, 같은 날 02:20 경 음주 운전으로 경찰에 적발되었으며, 같은 날 02:49 경 호흡 측정을 하여 그...