Cancellation of drunk driving license is ‘invalid’ if the police incorrectly informed the person of the decision and gave up on re-testing

“Suspension will be imposed” due to abandonment of re-measurement… 1st trial: “The final decision lies with the driver”
Appeals court: “A driver who is not a legal expert, trusted the police and did not request a re-measurement… This is an illegal matter.”

The court ruled that if the driver gave up on re-testing because the police incorrectly notified him of the administrative disposition during the crackdown on drunk driving, the subsequent disposition should be considered invalid.

On the 27th of last month, the 4th-3rd Administrative Division of the Seoul High Court overturned the first trial judgment and ruled in favor of the plaintiff in the appeal trial of a lawsuit filed by a man in his 30s, Mr.

Mr. A was caught in a drunk driving crackdown in 2023 and had his license revoked the following year. At the time of arrest, the blood alcohol content was 0.033%, which is the level for license suspension, but the police revoked the license on the grounds that Mr. A had a history of drunk driving.

Afterwards, Mr. A filed an administrative judgment, claiming that there was a problem with the measurement process. At the time, I was notified by the police that a relatively light ‘license suspension’ would be imposed, and this is why I did not have blood drawn. Mr. A argued that the cancellation was illegal because he gave up his right to request re-measurement due to the police officer's provision of incorrect information.

However, the police countered that the police officer who controlled the scene at the time clearly informed Mr. A that he had the right to re-measure, and that Mr. A then directly wrote in the relevant documents that he would give up the re-measurement. Furthermore, it was emphasized that the final decision-making rests with Mr. A's own responsibility and judgment because the enforcement police officer has no obligation or responsibility to guide legal decisions.

The Central Administrative Appeals Committee, which reviewed the case, dismissed Mr. A's claim. Accordingly, Mr. A filed an administrative lawsuit.

The first trial court ruled in favor of the police. The court said, “The police officer only informed the driver for convenience that he was expected to receive administrative action equivalent to a suspension,” and added, “It is difficult to say that the police officer has a duty to investigate the driver’s drinking history and inform him of the expected action, and it cannot be said that the plaintiff was wrongly notified of this.”

Mr. A, who was dissatisfied with this, immediately appealed, and the second trial court ruled in Mr. A's favor. The appellate court said, “The purpose of establishing the alcohol re-testing procedure is to allow police officials to clearly inform drivers of the legal effects and to make a reasonable decision on whether to request a re-testing,” and ruled, “If the police incorrectly announced the decision and the driver gave up the right to request a re-testing, this is illegal.”

He added, “As a plaintiff who is not a legal expert, it appears that he decided not to request a re-measurement in anticipation of a suspension as notified by the police.” He added, “It is reasonable to view that the plaintiff gave up his right to request a re-measurement due to the provision of incorrect information by the police.”

Attorney Shin Dong-hoon of Daeryun Law Firm, who represented Mr. A, said, “There is a large difference in the degree of disadvantage to the party involved in the suspension and revocation of a driver's license, so in cases like Mr. A whose blood alcohol concentration exceeds the threshold by a small amount, this is important information in deciding on a re-measurement.” explained.
 

Reporter Kim Jong-cheol (jckim99@sportsseoul.com)

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Cancellation of drunk driving license, ‘invalid’ if re-test was abandoned due to incorrect notice of disposition by police (Shortcut)