강제채혈의 문제점과 증거수집의 적법성 확보방안 - 의식불명인 음주운전자에 대한 강제채혈을 중심으로 -

Abstract

The controversy over illegality is presented in relation to the method of enforced blood gathering for drunk drivers on the scene of car accident. Especially, it is impossible to get agreement from insensible drunk drivers in gathering their blood. In addition, there is a case that it is impossible to prove the seizure and search without the warrant, which is pointed out as a serious problem. In the light of the intent of the regulations of the current Criminal Procedure Law and the judicial precedents of the Supreme Court, there is the following method of establishing the legality of enforced blood gathering for drunk drivers: the method of asking the doctor or nurse to gather the blood and getting it submitted voluntarily or getting the warrant for testing seizure and search issued after requesting it and getting the blood; the method of taking the insensible drunk driver to the hospital, gathering his or her blood without the warrant and getting the warrant for testing seizure and search after it. But these methods have some limitation since they intrude on individuals' right to dominate the information on their blood or cannot have the requirements for testing seizure and search without the warrant on the criminal place during the crime or shortly after the crime. To secure the legality of enforced blood gathering for drunk drivers, it is necessary to construct the institutional system for the judge to issue the warrant for testing the seizure and search the investigative agency requests even at night, within several hours or solve it in a legislative way through the amendment of the Criminal Procedure Law.