Seocho criminal lawyer, acquitted a drunk driving defendant who was caught while his blood alcohol level was rising.

According to the legal community, it was reported that a recent ruling was made that if a driver's blood alcohol level was elevated at the time of the breathalyzer test, it cannot be used as a basis for punishment because the actual level is inaccurate.

In the case of the ruling, the defendant, who drank alcohol at a dinner party with colleagues and was caught by the enforcement team after getting behind the wheel about an hour later, had a blood alcohol content of 0.038%. Under the current Road Traffic Act, the standard for drunk driving is a blood alcohol concentration of 0.03% or higher, so even if you drink just one glass of soju, you can exceed the standard. Accordingly, the prosecutor charged the defendant with drunk driving under the Road Traffic Act. In a trial where the defendant's crime is contested, a sharply conflicting issue is the timing of blood alcohol concentration measurement and the period when the blood alcohol concentration rises.

Seocho criminal lawyer Shim Jae-guk of Daeryun Law Firm, who represented the defendant at the time, said, “The defendant's blood alcohol concentration measured when he was caught in a drunk driving raid was slightly above the crackdown standard, and the time when the breathalyzer test was taken was when he finished driving and corresponded to the period when his blood alcohol concentration rose, so it seemed necessary to consider the time when he finished driving, the time of the breathalyzer test, and the measurement error by the breathalyzer.”

Generally, when drinking alcohol, blood alcohol concentration maintains a certain level, rises to the highest level about 30 to 90 minutes after drinking, and then gradually decreases. For this reason, if there is a time gap between the actual driving time and the time of detection, the ‘Weedmark formula’, a method of estimating blood alcohol concentration, is used. Considering that blood alcohol concentration rises for 30 to 90 minutes after drinking and then begins to decline, the method is to back-estimate what the actual blood alcohol concentration level was at the time of drunk driving, taking into account various factors such as the type and amount of alcohol consumed by the tester, time of drinking, body weight, and absorption rate in the body.

Seocho criminal lawyer Shim Jae-guk said, "We presented a Supreme Court decision that specified a similar situation at the time and argued that considering various circumstances such as the possibility of error in specifying the time of the incident, it cannot be concluded that the defendant's blood alcohol content at the time of driving exceeded the punishment standard. Additionally, we actively argued for favorable circumstances, such as the fact that the defendant was using mouthwash according to dental treatment prescriptions, which could also affect the blood alcohol content. “I proved my innocence,” he explained.

He continued, “Drunk driving is an act that should not be done under any circumstances,” and added, “If you are inevitably at risk of heavy punishment due to various circumstances, it will be necessary to collect evidence with the help of a lawyer and protect yourself through a defense based on extenuating factors.” To this end, he advised, “Even if administrative dispositions such as license cancellation are appropriate, if the results are unjust, you can consider administrative judgment, which is a system that cancels administrative dispositions or reduces the sentence.”

Meanwhile, Daeryun Law Firm provides necessary legal assistance in criminal cases such as traffic crimes, economic crimes, sex crimes, and violent crimes, as well as drunk driving accidents, refusal to take a breathalyzer test, aiding and abetting drunk driving, being a passenger while drunk driving, drunk driving without a license, drunk driving fatalities, and hangover driving.

View original article - https://news.naver.com/main/read.nhn?mode=LSD&mid=sec&sid1=103&oid=016&aid=0001750493