The defendant's appeal is dismissed.

1. The summary of the grounds for appeal (in fact-finding or misapprehension of legal principle) was that the Defendant’s pulmonary measurement result did not go through a fair method and procedure to ensure the accuracy and objectivity of the measurement, and thus, it cannot be admitted as evidence (hereinafter “claim of admissibility of evidence”). Even if admissibility is recognized, the Defendant’s condition at the time of the instant case was good, and the blood alcohol concentration presumed by applying the hmark formula was lower than the hmark test result, and thus, the numerical value of 0.117% cannot be trusted.

(hereinafter “Evidence of Evidence”) 2. Determination of the grounds for appeal

A. Determination as to the assertion of admissibility of evidence can be based on the result of the measurement conducted under Article 44(2) of the Road Traffic Act, such as revocation or suspension of a driver's license, and it can be used as important evidence in future investigation and trial. Thus, in measuring alcohol, it shall be conducted in accordance with fair methods and procedures to ensure the accuracy and objectivity of the measurement by taking necessary measures in advance to prevent any error due to remaining alcohol in the mouth of the driver's mouth. If the result of the measurement of alcohol was not obtained through such methods and procedures, it shall not be easily admitted as evidence of guilt (see, e.g., Supreme Court Decision 2008Do5531, Aug. 21, 2008). Meanwhile, according to the above Article 44(3) of the Road Traffic Act, the driver's consent to blood collection can be obtained from the driver dissatisfied with the measurement conducted by the driver, and thus, the driver's consent can be re-examined.