[1] The meaning of "measurement" under Article 44 (2) of the Road Traffic Act (i.e., measurement by the smoking measuring apparatus) and the time when a driver can demand the measurement of blood alcohol concentration by means of blood collection

[2] In a case where a drinking driver is dissatisfied with the result of a measurement of blood alcohol concentration by a respiratory measuring instrument conducted by a police officer, the case affirming the fact of drinking based on the result of the first respiratory measuring instrument, based on the fact that he/she did not explicitly require a re-measurement or blood collection method within a considerable time after the first measurement by a respiratory measuring instrument

[1] Article 44 (2) and (3) of the Road Traffic Act / [2] Article 44 (2) and (3) of the Road Traffic Act

[1] Supreme Court Decision 99Do5210 delivered on April 21, 200 (Gong2000Sang, 1336) Supreme Court Decision 2001Do7121 Delivered on March 15, 2002 (Gong2002Sang, 944)

Defendant

Defendant

Daejeon District Court Decision 2007No2156 Decided February 13, 2008

The appeal is dismissed. The date of the judgment of the court below shall be corrected to February 13, 2008.

We examine the grounds of appeal.

In accordance with the provision of Article 44 (2) of the Road Traffic Act, a measurement conducted to determine whether a police officer is under the influence of alcohol shall be understood as a measurement conducted by a pulmonary measuring instrument, i.e., an objectively converting the degree of alcohol from the pulmonary testing instrument. Moreover, if a police officer objects to a pulmonary test conducted by a pulmonary testing instrument to a police officer, and is dissatisfied with the result of the pulmonary test conducted by a pulmonary testing instrument, and thus, requests a measurement conducted by a pulmonary testing method, i.e., an immediate, or the second and third pulmonary test conducted by a pulmonary testing instrument, the police officer may demand a measurement conducted by a pulmonary testing method from the time when a police officer presents the result of the pulmonary test to a driver. A police officer requests a measurement conducted by a pulmonary testing method after a considerable period of time from the above point of time without justifiable cause, it cannot be deemed a justifiable demand. In this case, even if a police officer did not perform a measurement by a pulmonary or blood collection method, it can prove only the result of a pulmon test.

According to the records, the defendant did not have any evidence to acknowledge that the police officer at the time when he was controlled by the alcohol driving in this case was dissatisfied with the result of the blood alcohol concentration measurement by the respiratory measuring instrument, and there was no evidence to acknowledge that the defendant explicitly requested the second pulmonary test or blood collection measurement within a considerable time, and there was no objective circumstance to recognize that the result of the blood alcohol concentration measurement by the respiratory measuring instrument against the defendant was higher than the defendant's actual alcohol level, the credibility of the result of the blood alcohol concentration measurement by the respiratory measuring instrument to the defendant at the time of the regulation of the alcohol driving in this case cannot be denied.

In the same purport, the court below's maintenance of the judgment of the court of first instance which found the defendant guilty on the grounds of the result of measurement by the first respiratory tester is just in light of the above legal principles, and there is no error of law as alleged in the grounds of appeal.

Therefore, the appeal is dismissed and the judgment date of the court below is clear that it is a clerical error. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)