"Starting the Engine to Charge an Electronic Cigarette"... Suspended Sentence for Third Offense Drunk Driving with 'Refusal to Take Breathalyzer'

Court Applies Yoon Chang-ho Act

[Asia Economy Reporter Kim Daehyun] A third-time offender of drunk driving who refused a police breathalyzer test was sentenced to a suspended prison term.

According to the legal community on the 4th, Judge Kang Hyukseong of the Criminal Division 7 at the Seoul Central District Court sentenced A (54, male), who was indicted for violating the Road Traffic Act (refusal to take a breathalyzer test), to one year in prison with a two-year suspension. He was also ordered to perform 80 hours of community service and attend 40 hours of a safe driving lecture.

Earlier, A was brought to trial for refusing the police officer’s breathalyzer request three times over about 20 minutes around 7:30 p.m. on March 15 on a road in Gwanak-gu, Seoul.

Although A smelled of alcohol and had a flushed face, he was found to have only pretended to blow into the breathalyzer. He had a prior record of drunk driving three times, each resulting in fines ranging from 1.5 million to 5 million won.

In court, A’s side admitted to refusing the breathalyzer test but claimed he was not driving under the influence. A’s lawyer stated, "The defendant had been drinking with an acquaintance and was trying to call a designated driver after charging his electronic cigarette by turning on the car’s ignition. He did not intend to drive, but the responding police officer misunderstood." Meanwhile, the prosecutor requested a two-year prison sentence for A.

The court ruled, "Given the recent history of punishment for drunk driving and the refusal to comply with the breathalyzer request from the police officer, the blameworthiness is high," and found A guilty. The court applied Article 148-2, Paragraph 1 of the Road Traffic Act, known as the 'Yoon Chang-ho Act,' which imposes heavier penalties on those caught driving under the influence two or more times or refusing breathalyzer tests two or more times.

However, the court also considered favorable factors such as the defendant’s admission and remorse, the absence of prior criminal punishment exceeding fines, as well as the defendant’s age, character, environment, and motive for the crime, and thus suspended the execution of the prison sentence.

Meanwhile, on the 25th of last month, the Constitutional Court ruled that the part of Article 148-2, Paragraph 1 of the Road Traffic Act concerning "persons who have violated Article 44, Paragraph 1 (prohibition of drunk driving) two or more times" is unconstitutional, partially invalidating the Yoon Chang-ho Act. The court found it unfair to impose heavier penalties without considering the interval or severity between the two offenses.

However, the Supreme Prosecutors’ Office stated that cases involving repeated refusal of breathalyzer tests and combined cases of drunk driving and refusal of breathalyzer tests will continue to be handled as before. After comprehensively reviewing the subjects and reasons of the Constitutional Court’s decision, it was judged that the unconstitutionality ruling does not apply to the refusal of breathalyzer test provisions.