The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. The blood alcohol concentration from blood obtained by a misunderstanding manufacturer was 0.170%, but the blood alcohol concentration was 0.296%.

It is not acceptable to accept the difference in the measurement value.

B. The sentencing of the lower court’s unfair sentencing (an amount of seven million won) is too unreasonable.

2. Determination

A. In the case of a measurement by a respiratory measuring instrument with respect to the assertion of factual mistake, there may be problems in the accuracy and reliability of the measurement result based on the state of the measuring instrument, measuring method, cooperation degree of the other party. Thus, barring any special circumstance that the result of the measurement by blood gathering is difficult to believe, such as artificial manipulation in the process of blood collection or examination, or errors by the related parties, it conforms to the empirical rule to regard the blood testing as a result of the measurement as a result of the blood alcohol level as a level adjacent to the blood concentration at the time of measurement than the breath measurement by the breath measuring instrument (see Supreme Court Decision 2003Do6905, Feb. 13, 2004, etc.). Meanwhile, although there are differences for each individual, the blood alcohol concentration between 30 minutes and 90 minutes after drinking, and thereafter, about 0.08% per hour to 00.03% (average 0.15%).

According to the evidence examined by the court below, the following facts are acknowledged: ① the Defendant was under control of the police while driving the instant drinking around 16:20 on September 27, 2017; ② the Defendant was under control of the police on the same day; ② the Defendant’s alcohol level in blood by the respiratory measurement method conducted by the Defendant around 16:46 on the same day; ③ the Defendant requested a re-measurement of blood collection method; ③ the Defendant was collecting blood to the Defendant around 17:30 on the same day; ④ the Defendant was under control of the blood concentration in blood; ④ the Defendant’s first drinking level was 0:0 on the same day; ④ the Defendant’s first drinking level was 15:20 through 15:30 on the same day.

The time when the defendant was driven was about 60 minutes from the final drinking time, and it was also about 60 minutes.