2007Do4404 Violation of the Road Traffic Act Violation of the Road Traffic Act(Drunk Driving)

by the Supreme Court of Korea

Justices Kim Hwang-sik (Presiding Justice), Kim Young-ran, Lee Hong-hun, Ahn Dai-hee (Justice in charge)

Main Issues

1. In case where a driver continued driving the same vehicle for a certain period of time with a blood alcohol level of 0.05% or higher and was tested once for the blood alcohol level, whether the drunk driving constitutes one inclusive crime (affirmative)
2. The case holding that the later charge against drunk driving at the time of the first accident constitutes one inclusive crime with the crime of violation of the Road Traffic Act (drunk driving) as to which a summary order had been already finalized, in the case where a drunk driver continued driving after causing the first accident and caused the second accident, then received the blood alcohol level measurement and in this regard a summary order of the crime of violating the Road Traffic Act (drunk driving) at the time of the second accident was finalized

Summary of Decision

1. If a driver continued driving the same vehicle for a certain period of time with a blood alcohol level of 0.05% or higher and was tested once for the blood alcohol level, it constitutes one inclusive crime in consideration of a legal interest protected by the punishment of a drunk driving crime in violation of the Road Traffic Act and its punishment method, since such act of drunk driving is a series of acts under the same name of crime that are continually committed under a single and continuing criminal intention, which inflicts damage on the same legal interest.
2. The case holding that the later charge against a drunk driving at the time of the first accident constitutes one inclusive crime with the crime of violation of the Road Traffic Act (drunk driving) as to which a summary order had been already finalized, in the case where a drunk driver continued driving after causing the first accident and caused the second accident, then received the blood alcohol level measurement and in this regard a summary order of the crime of violating the Road Traffic Act (drunk driving) at the time of the second accident was finalized

Reference Provisions

1. Article 38 of the Criminal act, Article 44(1) and (4) of the Road Traffic Act/[2] Article 38 of the Criminal act, Article 44(1) and (4) of the Road Traffic Act, Article 326 Item 1 of the Criminal Procedure Act

Article 37 of the Criminal Act (Concurrent Crimes)

Several crimes for which judgment has not become final, or a crime for which judgment to punish with an imprisonment without prison labor or a heavier punishment has become final and the crimes committed before the said final judgment shall be regarded as concurrent crimes.

Article 326 of the Criminal Procedure Act (Judgment of Acquittal)

Acquittal shall be pronounced by judgment in the following cases:

1. Where a finally binding judgment has already been rendered

Article 44 of the Road Traffic Act (Prohibition of Driving under Influence of Liquor)

(1) No person shall drive a motor vehicle, etc. under the influence of liquor (including the construction machinery other than those referred to in the proviso of Article 26 (1) of the Construction Machinery Management Act).

(4) The standard for the drunken conditions for which any driving is prohibited under the paragraph (1) shall be the alcohol blood level of 0.05% or higher.

Reference Cases

1. Supreme Court Decision 2005Do4051 delivered on September 30, 2005(Gong2005Ha, 1757), Supreme Court Decision 2006Do1252 delivered on May 11, 2006

[Defendant]Defendant

[Appellant]Prosecutor and Defendant

[Judgment of the court below]Gwangju District Court Decision 2006No1850 delivered on May 10, 2007

Disposition

All of the appeals shall be dismissed.

Reasoning

This is to examine the Grounds for Appeal.

1. As to the prosecutor’s appeal

The purpose of punishing drunk driving is to prevent the danger of causing traffic accidents by driving under the influence of alcohol that reduces or weakens the ability to bear responsibility. Drunk driving is punished in two ways: unconditional punishment of a driver whose blood alcohol level surpasses a certain level, or punishment depending on whether a driving ability has been actually reduced or not, regardless of a specific figure from a blood alcohol level test. The Road Traffic Act adopts the former position and stipulates in Article 44 (4) that the standard of the "state of being drunk" shall be a blood alcohol level of 0.05% or higher and prohibits "driving under the influence of alcohol" in Article 44 (1).

Meanwhile, if numerous acts or a series of acts that constitute the same name of crime are continuously committed under a single continuing criminal intention which result in the damage on the same legal interest, each of the above acts shall be punished as one inclusive crime (refer to Supreme Court Decision 2005Do4051 delivered on September 30, 2005, Supreme Court Decision 2006Do1252 delivered on May 11, 2006, et al), and considering a protected legal interest and the punishment method of a crime of violating the Road Traffic Act due to drunk driving, if the defendant was driving the same vehicle for a certain period of time with a blood alcohol level of 0.05% or higher and was tested once for drinking, such act of drunk driving is a series of acts under the same name of crime that are continually committed under a single continuing criminal intention which inflicts damage on the same legal interest, so it shall be deemed as one inclusive crime.

According to the record, the defendant drank alcoholic beverage with friends at the alley where pork intestines sausages are sold in Namkyo-dong of the Mokpo City; the defendant drove a Leganza under the influence of alcohol; on July 28, 2006 at around 03:20, the defendant reached the road in front of the Rose Motel located on Lot 3 of Yongdang-dong of the Mokpo City and damaged the right fender and the side of the front bumper of the Lacetti which was parked on the road (the first accident); without taking necessary measures immediately or without stopping the car or getting out of the car, the defendant continued driving and arrived on the road in front of Koobongsan Noodle Restaurant located in Sang-dong of the Mokpo City 20 minutes later at around 03:40 on the same day and damaged the left front fender of the Kalos (the second accident); the defendant was tested at around 03:50 on the same day which measured his blood alcohol level to be 0.161%, and; afterwards, the defendant received a summary order of paying a fine of 1.5 million Korean Won for the crime of violating the Road Traffic Act (drunk driving) by "driving about 3km from the alley where pork intestines sausages are sold in Namkyo-dong of the Mokpo City to the road in front of Koobongsan Noodle Restaurant located in Sang-dong of the Mokpo City with the blood alcohol level to be 0.161%" and the summary order has been finalized. The fact underlying the charge for violating the Road Traffic Act by the drunk driving in this case is "the defendant drove the above Leganza about 3km on July 28, 2006 at around 03:20 with the blood alcohol level to be 0.161% in the direction of Koobongsan Noodle Restaurant located in Sang-dong of the Mokpo City during which he arrived on the road in front of the Rose Motel located on Lot 3 of Yongdang-dong of the Mokpo City," which is related to the drunk driving at the occurrence of the first accident.

If the above is the case, the defendant drove under the influence of alcohol the same vehicle under a single continuing criminal intention for about 20 minutes since the first accident in this case until the occurrence of the second accident, and in addition, the 3km from the alley where pork intestines sausages are sold in Namkyo-dong of the Mokpo City to the road in front of Koobongsan Noodle Restaurant located in Sang-dong of the Mokpo City that the above summary order has been finalized for violating the Road Traffic Act (drunk driving) includes the road in front of the Rose Motel located on Lot 3 of Yongdang-dong of the Mokpo City which is the location of the first accident (Namkyo-dong ~ Yongdang-dong ~ Sang-dong). The court below reversed the judgment of the first instance and declared the dismissal of the charge in this case for the reason that the crime of violating the Road Traffic Act through the drunk driving at time of the first accident which is the fact charged in this case constitutes one inclusive crime with the crime of violating the Road Traffic Act (drunk driving) for which the above summary order has been finalized, so the material legal effect of the above finalized summary order reaches the drunk driving charge of this case which overlaps with the prior case as to which a finalized judgment already exists. Thus, the decision of the court below is just, and is not erroneous in the misapplication of legal principles as to the protected legal interest and the conviction about the crime of violating the Road Traffic Act through drunk driving as argued in the Grounds for Appeal.

2. As to the defendant's appeal

The defendant, in his Grounds for Appeal, argues to the purport that it is not justifiable that the court below affirmed the fine of 1 million Korean Won while reversing the judgment of the first instance that imposed the above fine although it deemed a crime of violating the Road Traffic Act through not taking proper measures after damaging properties as a concurrent offense with a crime of violating the Road Traffic Act through drunk driving under Article 37 of the Criminal Act, and thereby dismissed the charge of a crime of violating the Road Traffic Act through drunk driving. However, an appeal on the ground of an unjustifiable sentencing shall only be permitted in cases where a death sentence, a sentence of life in prison, or a sentence of 10 years or more in prison or imprisonment are delivered, in accordance with the provision in Article 383 (4) of the Criminal Procedure Act, therefore, the ground for appeal that the sentencing is unjustifiable shall not be a legitimate ground for appeal in this case where a fine, which is a sentence lighter than the aforementioned ones, was imposed.

3. Conclusion

Therefore, the appeals by the prosecutor and the defendant shall be dismissed, and this decision is delivered as per Disposition with the assent of all Justices who reviewed the appeal.

Source

• Supreme Court Decision 2007Do4404 Delivered on July 26, 2007, Supreme Court Library of Korea