A final not-guilty verdict was handed down by the Supreme Court for driving after drinking enough to warrant a license cancellation. The evidence was deemed inadmissible because police violated procedure when they first stopped the driver for suspected drunk driving and drew blood.
The Supreme Court's Third Division (presiding Justice Lee Suk-yeon) said on the 25th that on Sept. 9 it rejected the prosecutor's appeal in the retrial of A, who was indicted on a charge of violating the Road Traffic Act (drunk driving), and finalized the lower court's acquittal of A.
In Feb. 2022, A drove a vehicle for about 250 meters in Yuseong District, Daejeon. A's blood alcohol concentration confirmed by the officers was 0.129%, a level that results in license cancellation (0.08% or higher). When the blood alcohol concentration is 0.08% or higher and less than 0.2%, the penalty is imprisonment for at least one year and up to two years, or a fine of at least 5 million won and up to 10 million won.
Prosecutors sought a summary order fining A 5 million won, and the court issued it. A objected and requested a formal trial. A took a breath test for alcohol measurement about 10 times over 30 to 40 minutes, but when no result was produced, officers drew blood to measure the blood alcohol concentration.
A's side argued, "Because officers did not inform A that blood collection could be refused, there was no consent from A, and the blood analysis result is illegally collected evidence that did not follow due procedure."
The first trial acquitted A. The first trial panel said, "Once a driver has complied with a breath test, it cannot be said there is naturally an obligation to submit again to alcohol testing," adding, "Legality is recognized only when blood is drawn based on the driver's voluntary decision, such as when an officer has informed the driver in advance that blood collection can be refused." The court therefore did not recognize the admissibility of A's blood test results.
The second trial recognized the admissibility of the blood test results and sentenced A to one year in prison, suspended for three years. The second trial panel said, "Although the officer did not explain to A before the blood draw that it 'could be refused,' there are no circumstances indicating a coercive atmosphere that it absolutely had to be done," and concluded, "A was in a situation where A could at any time freely say they would not submit to a blood draw."
On appeal, the Supreme Court reversed and remanded for a new hearing. Under the Criminal Procedure Act, in a case where the defendant requests a formal trial, a sentence more severe in kind than the penalty in the summary order cannot be imposed. Because A had received a summary order of a 5 million won fine, a suspended prison sentence, which is heavier than that, could not be imposed.
On remand, the court acquitted A. The remand panel rejected the admissibility of the blood test results, saying, "The officer told A only that 'you must do one of the two, either a breath test or a blood draw,' and did not separately notify A of the fact that a blood draw could be refused."
The Supreme Court determined the lower court did not misunderstand the law and dismissed the prosecutor's reappeal.