위드마크 공식에 의한 혈중알코올농도 추정의 몇 가지 문제점

Abstract

Under current law, 'driving under the influence' (the "DUI") is defined as driving with a blood alcohol content (the "BAC") of 0.03% or higher and it is most important to determine BAC at of the time of DUI when finding and punishing a DUI crime. Regarding BAC, while proof of a DUI is commonly gained through respiratory measurements and blood draws, occasionally those measurement may be taken following significant lapses in time from the moment of the DUI citation for reasons such as the driver losing his or her consciousness or fleeing the scene. In these cases the Widmark formula is utilized. At present, the Supreme Court of the Republic of Korea (the "Court") considers that formula as an 'empirical rule of scientific formula' and takes the position that BAC at the time of DUI may be assumed through utilization of the Widmark formula when no measurement value at the time of DUI exists. Moreover, the Court accepts and establishes a DUI crime based on that assumed BAC. In addition, the following problems exist when using the Widmark formula in a criminal trial. First, the quantity of alcohol consumed and time of consumption must be clearly determined when assuming the BAC. However, it is very difficult to calculate the quantity of alcohol consumed by an individual in a circumstance wherein many people drink together, and even determining the exact base time for drinking is very difficult because the absorption and break-down of blood alcohol continues whenever alcohol is consumed. Second, it is actually impossible to specify the point in time when the BAC reaches its peak when applying the Widmark formula. The Court considers 30 to 90 minutes as the period of increasing BAC, but some research indicates that period can range drastically depending on individual tolerances. There are even cases where the changes in periodicity of rising and falling BAC do not appear depending types of accompanying foods consumed. Third, the constant (r) and the hourly reduction ratio of the Widmark formula are highly inaccurate. Based on experimentation and previous studies, the constant (r) and hourly reduction ratio of the Widmark formula exist in a broad range. In particular, the difference in the reduction of the ratio of BAC is a factor of 6 or higher, depending on the individual situations. Fourth, the changes in BAC in real situations differ from the Widmark formula. It is unreasonable for us to generalize and apply the theory of the Widmark formula because the Widmark formula was created based on data from only a group of 30 persons and in experimental conditions far removed from real-life drinking situations. BAC is influenced by such diverse factors that range from gender, types and quantities of alcohol, body weight, personal habits, and diet, and it cannot be determined so easily. Considerable differences are found among individuals and even certain individuals demonstrate different ranges of those factors each time they consume alcohol depending on external circumstances and conditions. Accordingly, it is incredibly difficult to generalize the changes of BAC through mere mathematical formulation. In order to recognize and utilize the Widmark formula as an empirical rule and purely scientific formula in a criminal trial, the calculations of BAC derived from the Widmark formula must demonstrate consistent results without exception in that they may be generally applied, but the Widmark formula has repeatedly failed to demonstrate such accuracy. Thus, in cases where no result of measurement of BAC exists pertaining to a DUI case but the BAC derived from the Widmark formula is utilized nevertheless, we must follow the 'principle of in dubio pro reo' and consider that the crime of DUI has yet to be proven.