Refusal of a Breathalyzer Test | Not Guilty Where the Police Evidence-Collection Process Was Procedurally Unlawful Even Though a Drunk-Driving Accident Occurred

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."

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.)

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.