Supreme Court: Alcohol Ban Order Without Specified Period for Electronic Anklet Is Invalid

Lower Court Ruling Overturned and Remanded
"Cannot Punish for Violation if Compliance Period Was Not Specified"

Yonhap News Agency

The Supreme Court has ruled that if a period is not specified when attaching an electronic monitoring device (electronic anklet), it is unlawful, and therefore, violations cannot be punished.

According to the legal community on September 16, the First Division of the Supreme Court (Presiding Justice Ma Yongjoo) overturned the lower court's decision that sentenced Mr. A to eight months in prison for violating the Road Traffic Act (drunk driving) and the Electronic Device Attachment Act, and remanded the case to the Uijeongbu District Court.

In June 2014, Mr. A was sentenced to four years in prison and seven years of electronic location tracking device attachment for violating the Act on the Protection of Children and Youth Against Sexual Offenses. After Mr. A completed his prison sentence in December 2017, the court began enforcing the attachment order. In March last year, the court added a compliance condition: "Do not drink alcohol with a blood alcohol concentration of 0.03% or higher, and comply with legitimate breathalyzer tests by the probation officer."

The Electronic Device Attachment Act stipulates that "when issuing an attachment order, the court may set a compliance period within the range of the attachment period and impose compliance conditions such as restricting outings during certain hours, prohibiting entry into specific areas or places, and imposing restraining orders."

In April last year, Mr. A drank a bottle of soju in Namyangju, Gyeonggi Province, and was found to have a blood alcohol concentration of 0.107% during a breathalyzer test administered by a probation office staff member, leading to prosecution for violating the alcohol restriction compliance condition. He was also charged with driving approximately 8 kilometers while intoxicated. The first and second trials sentenced him to eight months in prison, but the Supreme Court returned the case with a not-guilty verdict.

The Supreme Court took issue with the fact that the court did not specify the period when imposing the compliance condition on Mr. A. The Supreme Court explained, "Because the additional compliance condition in this case did not specify a compliance period, it violates the Electronic Device Attachment Act and is therefore unlawful. As a result, the defendant cannot be punished for violating this compliance condition."

Furthermore, the court stated, "A probation officer cannot require compliance with a breathalyzer test based on an unlawful compliance condition," and added, "The results of such a breathalyzer test are unlawfully collected evidence and therefore cannot be admitted as evidence." Accordingly, the court found that the lower court's conviction for drunk driving based on this test result was also incorrect.