▲ Drunk driving crackdown
The Supreme Court has ruled that if police fail to provide a driver with water to rinse their mouth before conducting a breathalyzer test, the test results cannot be used as evidence of guilt.
The Supreme Court's First Division (Presiding Justice Cheon Dae-yup) recently overturned the lower court's ruling, which had sentenced a defendant, identified as A, to one year in prison suspended for two years on charges of violating the Road Traffic Act, and sent the case back to the Daejeon District Court.
A was put on trial for driving a cargo truck while intoxicated on a road in Sejong City in December 2023.
Police were dispatched after receiving a report that a person was asleep in the driver's seat of a vehicle with its engine running in the middle of the road, and subsequently administered a breathalyzer test to A.
At the time, A's blood alcohol concentration was measured at 0.081 percent. However, police did not provide A with water to rinse his mouth during the testing process, nor did they provide water or request a retest for about an hour until A was released.
The prosecution applied charges of repeat drunk driving, noting that A had a prior record in 2019 where a summary order of a 1 million won fine for drunk driving was finalized.
In response, A argued that because the police did not provide water to rinse his mouth, his blood alcohol concentration was measured higher than it actually was, making the test result unlawfully collected evidence.
The first trial court sentenced A to one year in prison suspended for two years, ruling that providing water to rinse the mouth is merely a procedure under internal National Police Agency guidelines, and failing to follow it does not render the breathalyzer test unlawful.
The first instance court also concluded that since the test was conducted more than 20 minutes after drinking stopped, it was difficult to see an urgent necessity for rinsing the mouth with water.
The second trial court maintained the lower court's decision and dismissed the appeal.
The appellate court stated, "The defendant suddenly woke up and blew into the measuring device, which is why drinking water could not be provided, and the responsibility lies with the defendant," while also judging that the breathalyzer test results were generally accurate.
However, the Supreme Court overturned the lower court ruling, stating that A's breathalyzer test results constituted unlawfully collected evidence.
The Supreme Court noted that in July 2023, prior to the breathalyzer test in this case, the procedure for providing water to rinse the mouth was explicitly stipulated in the Enforcement Rule of the Road Traffic Act, thereby acquiring legal binding force.
Consequently, breathalyzer test results obtained without going through this procedure are, in principle, excluded from evidentiary admissibility and cannot be used as evidence of guilt, the court explained.
It further ruled that the case did not fall under exceptional circumstances where breathalyzer test results could be used as evidence of guilt.
The Supreme Court stated, "Research findings showing that the effects of residual alcohol in the oral cavity disappear 20 minutes after drinking cease are premised on experiments that excluded factors such as burping or hiccups," adding, "It cannot be considered that the risk of blood alcohol concentration being measured higher than reality due to residual alcohol disappears in actual drunk driving enforcement sites."
(Photo: Yonhap News)
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