The Supreme Court has ruled that if the police fail to properly inform a suspect during a drunk driving crackdown that they have the right to refuse a blood test, the blood alcohol concentration test results obtained through blood collection cannot be used as evidence of guilt.

According to legal circles on the 25th, the Supreme Court's Third Division (Presiding Justice Lee Sook-yeon) recently finalized the appellate court's not-guilty verdict for a defendant identified as A, who was indicted for driving under the influence of alcohol in violation of the Road Traffic Act.

A was put on trial on charges of driving a passenger car for about 250 meters with a blood alcohol concentration of 0.129% on a road in Yuseong-gu, Daejeon, on the night of February 23, 2022.

At the time, police attempted breathalyzer tests about 10 times, but when no result was produced, they obtained A's consent to secure a blood alcohol concentration reading through a blood draw.

A was issued a summary order of a 5 million won fine, but appealed and requested a formal trial.

A's legal team argued that the police failed to notify A of the right to refuse during the blood collection process, making the blood test results unlawfully collected evidence obtained in violation of due process.

The first instance court accepted this argument and handed down an acquittal. However, the second instance court ruled A guilty on the grounds that the blood collection was conducted with A's consent, sentencing A to one year in prison with a three-year probation period.

In February 2024, the Supreme Court overturned the appellate court's ruling, stating that it violated the principle of prohibition against increasing the severity of punishment under the Criminal Procedure Act.

This principle dictates that in cases where only the defendant has requested a formal trial, a heavier type of punishment than that of the summary order cannot be imposed.

The remand court sentenced A to acquittal in December of last year.

The remand court panel judged that the police at the time only explained to A that "you must unconditionally choose one of the two, either a breath test or a blood test," and did not separately inform A of the fact that the blood test could be refused.

The court stated that this implied that A, who was in a situation where breath testing was difficult, had an obligation to comply with the blood collection, making it an "inaccurate explanation."

Therefore, the court concluded that the blood voluntarily submitted by A to the police officer constituted evidence collected not in accordance with due process, and the appraisal report, being secondary evidence based upon it, could not be used as evidence either.

Although the prosecutor appealed once again, the Supreme Court deemed that there was no error in this judgment and dismissed the appeal.
 
(Photo: Yonhap News)