의식불명 상태의 음주운전자에 대한 강제채혈의 적법성 연구

Abstract

There was a case judgment from the Supreme Court where it is possible for a police officer to extract an unconscious DUI suspect’s blood without the suspect’s consent in order to obtain evidence as far as the police officer already has an appraisal warrant or seizure warrant issued from the court. If there is no time to issue a warrant in advance such as an emergency, a hospital emergency room can be assumed as a crime scene. So, sampling the suspect’s blood without a warrant from the court is possible,according to the Code of Criminal Procedure Article 216, paragraph 3. and then, the seizure warrant should be issued without any delay. However, in my opinion, a verification warrant instead of an appraisal warrant or seizure warrant is needed for the compulsory blood-collecting. In an emergency where the suspect can be arrested for the compulsory blood-gathering, since the suspect can be considered as a quasi-flagrant offender under the Code of Criminal Procedure Article 216, Paragraph 1, No. 2 and Article 173, paragraph 1. And then, a verification warrant should be issued later. The reason why a judgment or an academic theory for the case doesn’t agree is that the viewpoints on the legal characteristics of the compulsory blood extraction are different. The confusion lies in interpreting where seizure, search, verification and appraisal measure belong to more appropriately. Therefore, overall review of the case is needed, such as an introduction of physical examination warrant for extracting human blood or an independent seizure search or verification policy. Also, if the drunk driver is conscious, he/she is likely to agree breath-measuring or blood-collecting by an police officer. So, it is recommended to make a law to acknowledge the exception of the exclusionary rule which permits to collect human blood without warrant when a DUI suspect is unconscious.