The Supreme Court has ruled that if the police fail to properly inform a driver during a sobriety check that they have the right to refuse a blood draw, the resulting blood alcohol concentration test results cannot be used as evidence of guilt.

The Supreme Court's Third Division (Presiding Justice Lee Sook-yeon) recently finalized the appellate court's acquittal of a motorist identified as A, who was indicted on charges of drunk driving under the Road Traffic Act.

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

At the time, police attempted breathalyzer tests about ten times, but when no result was produced, they obtained A's consent to draw blood to measure the blood alcohol level.

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

A's defense argued that the police failed to notify A of the right to refuse during the blood collection process, making the blood test result evidence collected unlawfully without adhering to due process.

The first instance court accepted this argument and acquitted A, but the second instance court found A guilty on the grounds that the blood draw was conducted with A's consent, sentencing A to one year in prison suspended for three years.

In February 2024, the Supreme Court overturned the appellate court ruling, stating that it violated the criminal procedure principle prohibiting the aggravation of punishment in cases where only the defendant appealed.

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

The remand trial court acquitted A in December of last year.

The remand court determined that the police at the time merely explained to A that "you must unconditionally do one of the two, either take a breath test or a blood draw," and did not separately notify A of the fact that the blood draw could be refused.

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

Therefore, the court concluded that the blood voluntarily submitted to the police officer constituted evidence collected without following proper procedures, 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)