새로운 유형의 음주측정불응행위에 대한 법리적 검토 - 경찰법적 시각에서 법률해석방법을 토대로 -

Abstract

According to road traffic act police officer can administer breath testing, when he admits necessity for the safety and averting danger on the road or believes with the probable cause that the accused drives in a state of intoxication. At this time the accused must comply the test by police officer. Otherwise the accused is guilty of the offense of refusing field sobriety test. At the beginning this rules were not prescribed on the road traffic act and in 1980 the rules were prescribed for the first time. But the accused could not be punished in spite of his refusal of field sobriety test, when there was no necessity for the safety and averting danger on the road. therefore the probable cause was added in 1995. Recently new type of refusing field sobriety test, for example escape on the road before the test or no wind-down the car window on the spot, showed up. The supreme court found the accused not guilty, who has escaped on the road before the test. The reason was why there was suspect him of drunken driving, but no evidence. Therefore, the rules are examined in 3 ways, namely in historical analysis, in the point analysis of the rules and in the spirit analysis of the law. Especially, considering the legislative intent of offense of refusing field sobriety test is to ensure the safety and averting danger on the road and the test by criminal penalty, he will be guilty who escapes on the road or doesn‘t wind down the car window. It is better to prescribe the new type of refusing field sobriety test in the law, than to interpret the rules. Furthermore it is necessary to change the paradigm. Until now the supreme court has adjudicated in the eyes of criminal law. But such decisions are not enough to solve many new type of social problems. This is why the eyes of police law have to be applied.