The Supreme Court ruled that it was an erroneous judgment for the appellate court to overturn and newly sentence the portion of the sentence that had been finalized because neither the defendant nor the prosecutor appealed after the first trial verdict.
The Supreme Court's Third Division (Presiding Justice Lee Suk-yeon) said on the 12th that it overturned the lower court's sentence of eight months in prison in the appeal of a case against a person identified as A, who was indicted on charges of violating the Act on Electronic Monitoring, and remanded the case to the Jeju District Court on the 9th of last month.
On July 9, 2024, A was sentenced to one year in prison and a five-year order to attach a location-tracking electronic device for violating the Act on the Protection of Children and Youth against Sex Offenses (forcible molestation). A was released from Jeju Prison on Mar. 5 last year after completing the sentence and was given compliance conditions during the electronic monitoring period, including not drinking to a blood alcohol concentration of 0.03% or higher.
A blood alcohol concentration of 0.03% is a level typically reached about an hour after an adult man drinks two and a half shots of soju or two cans of beer. At this level, the brain's functions for judgment and emotion are suppressed, and driving in such a state results in a license suspension if caught.
Five months after release, on Aug. 17 last year in Jeju City in the morning, A shared one and a half bottles of soju with an acquaintance. When a Jeju Probation Office officer measured at about 10:35 a.m., the blood alcohol concentration was 0.215%. The officer told A to go home, but at about 12:50 p.m. the same day, A additionally drank makgeolli near a market. When the Jeju Probation Office officer conducted another breath test at 1:18 p.m., the blood alcohol concentration measured 0.243%.
Prosecutors indicted A separately for drinking in the morning and afternoon that day. In the first trial, only the morning drinking was found guilty, and A was sentenced to eight months in prison, while the afternoon drinking was acquitted. The first trial court found it insufficient to recognize guilt for the afternoon, reasoning that even if A had not drunk again after the morning, it could not be seen that the blood alcohol concentration would have dropped below 0.03% by the afternoon test.
A did not appeal the verdict, and only the prosecutor appealed the acquittal. However, the appellate court overturned the first trial verdict and found both the morning and afternoon drinking guilty, sentencing A to eight months in prison.
The appellate court held that because the blood alcohol concentration was higher in the afternoon due to additional drinking, it was established that A drank to 0.03% or higher again. It then set aside the portion acquitted at first instance, and, stating that a single sentence should be imposed together with the morning drinking that had been found guilty, it vacated the entire first trial judgment.
However, the Supreme Court said, "The guilty portion of the first trial judgment was finalized," and found that "the appellate court should have reviewed and ruled only on the acquitted portion of the first trial judgment, but it went on to review the finalized portion and resentenced." Accordingly, the Jeju District Court must review again only the portion concerning A's afternoon drinking.