[1] The concept of "driving" and "driving" under the Road Traffic Act

[2] The case holding that in a case where the defendant was not a "motor vehicle driver" who should comply with a request for alcohol alcohol measurement under the Road Traffic Act, in the case where the defendant's driver was not a "motor vehicle driver" who should comply with a request for alcohol alcohol measurement under the Road Traffic Act, and the defendant was not a "motor vehicle driver" in the crime of refusing alcohol measurement under the Road Traffic Act, when the motor vehicle was sitting and diving in the driver's seat which was not caused immediately before the defendant was demanded

[1] The crime of non-compliance with a drinking test under Article 150 subparagraph 2 of the Road Traffic Act is established when a person who has a reasonable ground to be recognized as being under the influence of alcohol fails to comply with a police officer's measurement in violation of Article 44 (2) of the same Act. A person who must comply with a police officer's request for a drinking test on the grounds that there are reasonable grounds to recognize that a person was driving a motor vehicle under the influence of alcohol in violation of Article 44 (1) of the Road Traffic Act is a driver of the relevant motor vehicle, and a person who is not a driver of the relevant motor vehicle is not a driver of the relevant motor vehicle, and it does not constitute a case where a person fails to comply with a drinking test under Article 44 (1) 24 of the same Act, since the concept of "driving" under Article 2 subparagraph 24 of the Road Traffic Act includes a purpose element in light of its provisions. Thus, it does not constitute a driving without a person's intent or participation in a motor vehicle.

[2] The case holding that in a case where the defendant was not a "motor vehicle driver" who should comply with a request for a alcohol test under the Road Traffic Act, in the case where the defendant's driver was not a "motor vehicle driver" who should comply with a request for a alcohol test under the Road Traffic Act, and was not a "motor vehicle driver" in the case where the motor vehicle driver was seated and was divingd immediately before the defendant was demanded to take a alcohol test, and the motor vehicle's driver was driven from the light on

[1] Article 2 subparag. 24, Article 44(1) and (2), and Article 150 subparag. 2 of the Road Traffic Act / [2] Article 2 subparag. 24, Article 44(1) and (2), and Article 150 subparag. 2 of the Road Traffic Act

[1] Supreme Court Decision 2004Do1109 decided Apr. 23, 2004 (Gong2004Sang, 936)

Defendant

Oral Gyeongscopes

Attorney Lee Ho-hoon

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of each of the facts charged in this case

On November 7, 2008, at around 23:25, the Defendant refused a police officer’s request for a alcohol test at least three times from around 00:27 to 00:50 on November 8, 2008, without good cause, while under the influence of alcohol on the road at the entrance of the Hag-dong apartment located in the Hag-gun, Hag-gun, Hag-gun, Hag-gu, Hag-gun, Hag-gun.

2. Determination

The crime of non-driving under Article 150 subparagraph 2 of the Road Traffic Act is established when a person who has reasonable grounds to recognize that he was under the influence of alcohol has failed to comply with a measurement by a police officer under Article 44 (2) of the same Act. Article 44 (2) of the same Act provides that when a police officer recognizes it necessary for traffic safety and prevention of danger or when there are reasonable grounds to recognize that he was driving a motor vehicle under the influence of alcohol in violation of Article 44 (1) of the same Act, a driver may be able to measure whether he was under the influence of alcohol and the driver shall comply with such a measurement by a police officer. Thus, the person who is obliged to comply with a request for alcohol measurement by a police officer on the ground that there are reasonable grounds to recognize that he was driving a motor vehicle under the influence of alcohol in violation of Article 44 (1) of the same Act is the driver of the relevant motor vehicle, and if the person is not a driver of the relevant motor vehicle, he shall not be deemed to have violated the provisions of Article 44 (2) of the Road Traffic Act.

In full view of the record of the police interrogation protocol against the defendant, the statement of the police protocol against the non-indicted 1 and 2, the statement of the non-indicted 3, the report of the traffic accident, and the video of the site photograph, the defendant: (a) was seated in the driver's seat of the vehicle stated in the facts charged at the place; (b) the vehicle of this case, which was not caused by the starting of the driving, was parked at the speed of the shot road on the shot road; (c) it was impossible for the defendant to drive the vehicle on the start of the vehicle; and (d) considering these facts in light of the above legal principles, the driving of the vehicle of this case immediately before the defendant was demanded for a drinking test constitutes a case where the driver's license cannot be deemed to have been performed without involvement or involvement of the person in the vehicle; and (e) the defendant cannot be deemed to have met the request for a drinking test of the vehicle; and therefore, it does not constitute a police officer in question at the time of the request for a drinking test.

3. Conclusion

Therefore, it is decided as per the disposition that the defendant should be acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act, and that the summary of the judgment should be published in accordance with Article 58 (2) of the Criminal Act.

Judges Yoon Jae-ju