음주운전자의 동의 없는 채혈의 증거법적 검토

Abstract

Compulsory taking a blood sample from an unconscious DUI suspect who caused a traffic accident is possible in the following three methods: first by an expert appointed by law enforcement agency under court’s approval, second as a necessary disposition for seizure authorized by a seizure warrant, and third as a necessary disposition for inspection authorized by an inspection warrant. In order to determine the substantive truth it is highly necessary to quickly take a blood sample from a DUI suspect. Therefore it should be allowed to first take a blood sample and obtain a warrant afterward under Section 216 (3) of the Criminal Procedure Law. If an unconscious DUI suspect is evacuated to a hospital, and is able to be recognized as a flagrant offender or a quasi-flagrant offender by common sense, the ‘urgency’ requirement of Section 216 (3) should be considered as met. Moreover, if a DUI suspect is evacuated to hospital and it was not appropriate to take a blood sample from the accident scene, the emergency room can be acknowledged as the ‘scene of the offense’. The Supreme Court agrees that Section 216 (3) can be applied to allow taking of blood samples from unconscious DUI suspects in the emergency room, and this viewpoint seems reasonable.