Blood drawn during a drunk-driving stop cannot be used as evidence if police failed to notify the driver of the right to refuse the test, the Supreme Court has ruled.
The Supreme Court's Second Division, with Justice Lee Sook-yeon as presiding judge, recently upheld a lower court's acquittal of a defendant identified as A, who had been charged with violating the Road Traffic Act by driving under the influence, legal sources said on the 25th.
A was indicted on charges of driving a car about 250 meters on a road in Yuseong District, Daejeon, in February 2022, with a blood alcohol level of 0.129 percent. During the sobriety check, police attempted breath tests more than 10 times but failed to obtain a valid reading, then requested a blood test, obtaining a consent form before drawing blood. A received a summary order imposing a 5 million won ($3,600) fine but rejected it and requested a formal trial.
The court of first instance returned an acquittal, finding the blood analysis to be illegally obtained evidence. It reasoned that because police did not inform A of the right to refuse at the time of the blood draw, the sample could not be regarded as taken of A's own free will.
The appellate court, however, handed down a one-year prison term suspended for three years. It found the testing process lawful, citing among other factors that police had explained to A that a blood test was necessary.
The Supreme Court took a different view. It found that the appellate court had violated the Criminal Procedure Act, which bars imposing a heavier sentence than the summary order in a case in which only the defendant has requested a formal trial. The court did not rule on the substantive question of the evidence's admissibility.
The court on remand returned an acquittal, holding that because the driver was not notified of the right to refuse during the blood draw, each piece of evidence amounted to illegally obtained evidence and lacked evidentiary capacity. "The police officer explained to the defendant only that 'you must do one of the two, either a breath test or a blood draw,' and did not separately notify the defendant that the blood draw could be refused," the court said. "For a defendant for whom a breath test may be considered extremely difficult, this carried the implication that there was effectively an obligation to comply with the blood draw, and can be seen as an inaccurate explanation that affected the defendant's decision on whether to consent to the blood draw."
The Supreme Court upheld the lower court's judgment. "There was no error in the lower court's judgment of violating the rules of logic and experience so as to exceed the limits of the principle of free evaluation of evidence, or of misunderstanding the legal principles concerning the rule excluding illegally obtained evidence," the court ruled.
