[ChamTrue?] Yoon Chang-ho Act Unconstitutional... Will Ongoing Trials Also Change Atmosphere?

Rapper Jang Yong-jun (Noel), son of Jang Je-won, a member of the People Power Party [Image source=Yonhap News]

[Asia Economy Reporters Byungseon Gong, Daehyun Kim] On the 26th, the Constitutional Court ruled unconstitutional the so-called 'Yoon Chang-ho Act' clause that imposes aggravated punishment on drivers who repeatedly drive under the influence or refuse breathalyzer tests.

Article 148-2, Paragraph 1 of the current Road Traffic Act stipulates that those who mix drunk driving and refusal of breathalyzer tests two or more times, or refuse breathalyzer tests two or more times, shall be punished by imprisonment for 2 to 5 years or a fine of 10 million to 20 million won. The Constitutional Court viewed it as wrong to impose aggravated punishment uniformly without any restrictions related to past violations, including relatively minor repeat offenses.

Therefore, it is expected that this Constitutional Court decision will work favorably in the trials of defendants charged with violating the relevant clause.

According to the legal community on the 28th, defendants in related criminal trials are also more likely to avoid aggravated punishment due to this Constitutional Court decision. Even if the crimes were committed before the court's ruling, it affects ongoing trials.

This applies to Jang Yong-jun (Noel), son of People Power Party lawmaker Jang Je-won. In 2019, Jang was caught driving under the influence and was sentenced to 1 year and 6 months in prison with a 2-year probation. In September last year, he was retried on charges including refusal of breathalyzer tests and driving without a license, and the first trial court sentenced him to 1 year in prison. The second trial is currently underway. If the law passed by the National Assembly had been applied, all defendants related to drunk driving, including Jang, would have been subject to aggravated punishment.

In fact, the Supreme Prosecutors' Office instructed all local prosecutors' offices nationwide the day before to change cases under investigation applying the Yoon Chang-ho Act to general drunk driving regulations for prosecution, while actively reflecting aggravating factors in sentencing. For cases where there is a history of refusal of breathalyzer tests and another refusal occurs, the Yoon Chang-ho Act clause will be applied as before, since the unconstitutionality ruling has not yet been made.

Also, if trials are already underway, the indictment will be amended to change the Yoon Chang-ho Act clause to general drunk driving regulations, and prosecutors will request sentences corresponding to the crime considering aggravating factors. If the first or second trial court has issued a judgment but the punishment is not finalized, the prosecution plans to file appeals or further appeals on behalf of the defendants.

Previously, when other clauses of the Yoon Chang-ho Act were ruled unconstitutional, lower court rulings applying those clauses were repeatedly overturned and remanded by the Supreme Court. In November last year, the Constitutional Court ruled that the part of Article 148-2, Paragraph 1 of the Road Traffic Act concerning 'persons who violated Article 44, Paragraph 1 (prohibition of drunk driving) two or more times' was unconstitutional. It was deemed unfair to impose aggravated punishment without considering the period or degree between the two violations.

Accordingly, A (32, female), who was indicted last month on charges of drunk driving for the third time, was sentenced to a fine of 5 million won in the first trial but had the fine reduced to 3 million won on appeal. In the first trial, the Yoon Chang-ho Act clause imposing aggravated punishment on habitual drunk drivers with two or more offenses was applied, but the Constitutional Court later ruled it unconstitutional. The appellate court, Seoul Central District Court Criminal Appeal Division 5-1 (Presiding Judge Byung-ryul Choi), stated, "The prosecutor amended the indictment during the appeal to change 'two or more drunk driving violations' to 'general drunk driving violations' in accordance with the defendant's claim of legal misunderstanding."

Ko Hyeryeon, representative lawyer of Law Firm Hye, explained, "The purpose of the Constitutional Court's decision on the 26th is that the punishment stipulated by the Yoon Chang-ho Act is excessive, considering that aggravated punishment is already imposed for drunk driving, etc. The atmosphere of trials for defendants currently facing drunk driving charges will also change."

There is also a possibility of retrial if the sentence was based on the Yoon Chang-ho Act. Lawyer Ko explained, "Since the Constitutional Court recognized that the Yoon Chang-ho Act imposed excessive punishment, those currently serving sentences can also request retrials."