CONTENTS
- 1. Refusal of a Breathalyzer Test, What Were the Detailed Circumstances?
- - Refusal of a Breathalyzer Test, What Are the Relevant Statutes?
- 2. Refusal of a Breathalyzer Test, What Was the Court's Determination?
- 3. Refusal of a Breathalyzer Test, Daeryun's Strategy
1. Refusal of a Breathalyzer Test, What Were the Detailed Circumstances?
A drove about 1 km from the road in front of a bar in Gwangju to his home while heavily intoxicated, with a blood alcohol concentration of 0.128%, and caused an accident. He rear-ended a motorcycle parked on the roadside, after which A passed his contact information to an acquaintance of the motorcycle's owner and returned home.
That night, the police received a report stating, "A vehicle that rear-ended a parked motorcycle fled. The driver smelled of alcohol." Through a vehicle registration search, the police identified A's home address and went there.
At the building's shared entrance, the officers used the intercom to ask A's household to open the door for a breath test, but A's wife, who answered the intercom, did not open it.
The officers then followed another resident into the shared entrance and went up to the front door of the unit where A lived.
This time A's wife opened the door and led the police to the room where A was sleeping. From that point, a dispute began between the police and A.
Awakened from sleep, A refused the breath test, saying, "How did you get here? I cannot trust the person who reported this," and he asked the officers to leave, saying, "Please get out."
Even though the officers warned that "the charge of refusing a breath test could be applied and an arrest in flagrante delicto was possible," A stood his ground, saying, "Just handle it as a refusal of the breath test." In the end, A took the breath test, and his intoxication was confirmed.
At trial, A argued, "The officers ignored an explicit request to leave and conducted the breath test unlawfully."
Refusal of a Breathalyzer Test, What Are the Relevant Statutes?
🔗The crime of refusing a breathalyzer test is not established simply because a person drives after drinking and then declines a police officer's request for a breath test.
There must be a substantial reason to recognize that, at the time of the test request, the driver was in a state with a blood alcohol concentration of 0.03% or higher, and this is judged by considering objective circumstances as a whole, such as the driver's appearance, demeanor, manner of driving, and the type and amount of alcohol consumed.
One should be cautious because a refusal of a breath test may, together with the punishment for drunk driving, also establish the crime of obstruction of official duties.
▣ Road Traffic Act, Article 44 (Prohibition of Driving While Intoxicated) (1) No person shall drive a motor vehicle, etc., a tram, or a bicycle while intoxicated. (2) A police officer may, where deemed necessary for the safety of traffic and the prevention of danger, or where there is a substantial reason to recognize that a person has driven a motor vehicle, etc., a tram, or a bicycle while intoxicated in violation of paragraph (1), measure by means of a breath test whether the driver is intoxicated. In such cases, the driver shall comply with the police officer's measurement. |
✔ Where a person fails to comply despite being intoxicated or despite a substantial reason to recognize such a state
▶ Imprisonment for not less than one year and not more than five years, or a fine not exceeding 20 million won
✔ Where the person has a prior conviction of the same kind, of a fine or heavier, within the preceding 10 years
▶ Imprisonment for not less than one year and not more than six years, or a fine of not less than 5 million won and not more than 30 million won
2. Refusal of a Breathalyzer Test, What Was the Court's Determination?
In connection with the refusal of the breathalyzer test, the panel that heard A's criminal trial accepted A's argument. It held that the police entering A's residence to attempt a breath test constituted voluntary investigation and was unlawful.
The panel stated, "A breath test is an investigative procedure for collecting evidence regarding the offense of drunk driving that has already occurred," and noted, "To enter the defendant's home in order to request a breath test, the police must follow the procedures under the Criminal Procedure Act, and as a rule a warrant is required. It is also difficult to find that A was a 'person caught in flagrante delicto' or a 'quasi-person caught in flagrante delicto'* as specified by the Criminal Procedure Act."
The panel went on to hold, "Evidence such as the 'inquiry into the results of the drunk-driving enforcement' obtained through an investigation that violated due process constitutes unlawfully obtained evidence," and that "the remaining evidence, excluding the evidence that has been excluded, is insufficient to find that A drove while intoxicated."
This was a case confirming the fundamental principle of the Criminal Procedure Act that evidence collected without following lawful procedures cannot serve as evidence of guilt.
* Under the Criminal Procedure Act, a person caught in flagrante delicto is defined as a person who is in the course of committing an offense or who has just finished committing it. A quasi-person caught in flagrante delicto is defined as a person who is being pursued while called an offender; a person who possesses stolen goods or a weapon or other item sufficient to be recognized as having been used in the offense; a person who bears a clear trace of the offense on the body or skin; or a person who attempts to flee when asked who they are.
A quasi-person caught in flagrante delicto, like a person caught in flagrante delicto, may be arrested by anyone without a warrant. (See Articles 211 and 212 of the Criminal Procedure Act.)
A Related Supreme Court Determination
Similar to the judgment above, the following is a Supreme Court judgment that also held the defendant not guilty where the collection of evidence through a breath test was not lawful.
After B drank at a restaurant, an employee of an integrated control center who confirmed on CCTV that B had driven about 300 m to a nearby massage parlor reported it to the police.
The police arrived at the establishment and requested a breath test from B three times, but B refused, and B was brought to trial on charges of refusing a breath test and driving without a license.
The first and second instance courts found B guilty of driving without a license, but found B not guilty of refusing the breath test. They held that the officers entering without the consent of the establishment's owner and requesting a breath test from B constituted an unlawful search.
The panel held, "Even if there is a need for a breath test, the police entering another's premises without authorization and requesting a breath test constitutes an unlawful act."
3. Refusal of a Breathalyzer Test, Daeryun's Strategy
The above is an analysis of a District Court judgment holding that, even where a person drove while intoxicated, the evidence cannot be used to establish guilt if the breath-test process was not conducted lawfully.
A breath test serves to help ensure road safety and to prevent drunk-driving accidents.
Accordingly, refusing a breath test without a legitimate reason can lead to serious punishment, so complying with a police officer's request, even after driving while intoxicated, can assist the progress of the investigation.
If the crime of refusing a breathalyzer test is established and a person faces the risk of punishment, it may be advisable to seek the legal advice of an attorney experienced in such matters in order to establish a defense strategy from the early stages of the investigation.
The Daeryun Law Firm LLP 🔗Drunk Driving and Traffic Accident Response Group handles many matters, including a 🔗case in which a client charged with refusing a breathalyzer test was defended and received a suspended sentence (a suspended sentence under Korean law, broadly comparable to a suspended sentence or probation in common-law systems, under which the conviction loses its effect once the suspension period passes without incident). If you need assistance in this regard, you are welcome to request a legal consultation at any time.
