음주운전자에 대한 강제채혈의 적법성에 관한 고찰 - 미국판례의 분석을 중심으로 -

Abstract

Taking the blood sample from suspected drunk drivers without warrant by force is the controversial issue in Korea. In recently, Korean Supreme court held that taking the blood sample without warrant on the hospital would be possible applying the section of 216 of the criminal procedure. This research examined the United States case law related to blood alcohol testing to search the policy implication. Schmerber v. California(1966) was a landmark United States Supreme Court case in which the Court clarified the application of the Fourth Amendments protection against warrantless searches that intrude into the human body. the Court ruled that the involuntary, warrantless blood sample taken in this case was justified under the Fourth Amendment's exigent circumstances exception because evidence of blood alcohol would be destroyed by the body's natural metabolic processes if the officers were to wait for a warrant. However, In 2013, the Supreme Court clarified in Missouri v. McNeely that the natural metabolism of alcohol in the bloodstream is not a per se exigency that would always justify warrantless blood tests of individuals suspected of driving under the influence of alcohol. Birchfield v. North Dakota(2016), was a case in which the Supreme Court of the United States ruled that the search incident to arrest doctrine permits law enforcement to conduct warrantless breath tests but not blood tests on suspected drunk drivers. In conclusion, this study suggests as follows. First, blood sample testing should be enlarged when driver agree or request and in case of emergency circumstances because blood alcohol test is more accurate than breath test. Second, it is desirable to amend the provision of compulsory blood test in Traffic Law to guarantee the legitimacy of blood alcohol test without warrant.