Blood drawn from a suspected drunk driver cannot be used as evidence of guilt if police failed to properly inform the driver of the right to refuse the blood draw, South Korea's Supreme Court has ruled.
On the 25th, the third division of the Supreme Court, with Justice Lee Sook-yeon as the lead judge, dismissed a prosecutor's appeal and upheld an acquittal for a driver in his 40s, identified as A, who had been indicted for violating the Road Traffic Act through drunk driving. The lower court had handed down the ruling on the 9th of last month.
A was charged through summary indictment for driving about 250 meters after drinking in the Yuseong district of Daejeon in February 2022. At the time of detection, his blood alcohol content was measured at 0.129%. In June of that year, the court issued a summary order fining him 5 million won.
A summary order allows a court to reach a conclusion based solely on the investigation records submitted by the prosecutor, without formal trial proceedings, in cases where a relatively light penalty such as a fine is expected. When A refused to accept the order and requested a formal trial, the case moved to court.
The point of contention was the legality of how the blood was obtained. During the enforcement, police attempted breath tests more than 10 times over 30 to 40 minutes, but the amount of air A exhaled was insufficient to produce a reading, so officers proposed confirming intoxication through a blood draw.
In February 2023, the first-instance court acquitted A, ruling that "it is difficult to view the blood draw as having been carried out with voluntary consent, and no search-and-seizure warrant was issued," and finding the blood to be illegally obtained evidence. The court noted that A had been responding to repeated measurements over a long period in cold weather, and said the police action had in effect induced the blood draw.
By contrast, in September 2024 the appeals court overturned the first ruling and sentenced A to one year in prison, suspended for three years. It reasoned that there was no indication of a coercive atmosphere requiring that a blood draw be conducted, and therefore no illegality in the evidence-gathering process.
But in December of that year, the Supreme Court sent the case back, finding that it violated a Criminal Procedure Act provision barring a sentence heavier in kind than the summary order for a case in which a formal trial has been requested.
The court that reheard the case reached the same conclusion as the first-instance court. While it found that police had not created a coercive atmosphere, it ruled that consent could not be recognized as freely given, since it was difficult to conclude that A had been sufficiently aware of the right to refuse the request.
It added that blood obtained in the form of a voluntary submission was evidence gathered without due process, and that the appraisal report prepared on that basis was likewise secondary evidence and could not be admitted. Prosecutors appealed the acquittal again, but the Supreme Court declined to accept the appeal.
