주취상태에 있지 않은 운전자의 음주측정불응

Abstract

Refusing Field Sobriety Test While Not Intoxicated Kim, Hyung-JoonWhile the offense of refusing the field sobriety test may be committed when the person believed to be intoxicated refuses to submit to the breathalyzer test administered by police officers with probable cause according to the Art. 41 (2) of Road Traffic Act, the suggested case concerns the probable cause to believe his intoxication, which is an element of offence above. Although the accused in this case was found to be intoxicated in the breathalyzer test, there was no probable cause to believe his intoxication at the time the test was administered, putting together the coherence of speech, swaying, and face color of the accused. Therefore, it is appropriate that the trial court decision in finding him guilty was remanded in the appellate court, and later rejected in the supreme court. Especially, this decision has its meaningness in that it puts on the enforcement officials the burden to prove the offense of refusing sobriety test only when they have probable cause to believe that the accused is intoxicated, taking into account the breathalyzer reading in the first place, and secondly the face color, coherence of speech and walking balance, etc.Considering the legislative intent of offense of refusing sobriety test is to ensure the sobriety test, it will be an excessive expansion of criminal penalties to criminate the persons who refuse to submit the breathalyzer test, and cannot avoid the public criticism that it came only from the enforcement officials' convenience. Therefore, mandatory blood alcohol concentration test will be an advanced instrument to ensure the evidence of drunken driving.