0.03% on Breathalyzer 16 Minutes After Leaving the Wheel...Court Says "Considering the Rising Phase, Below the Enforcement Standard"

A driver in his 40s who had his license revoked after being caught driving under the influence twice won an administrative lawsuit filed against the police and recovered his license.

At the first arrest, the blood alcohol concentration was 0.030%, the threshold for drunk driving, but the measurement was taken more than 10 minutes after driving ended, and since this fell within the rising phase of blood alcohol concentration, the court judged that there was a possibility the standard was not exceeded during the actual driving.

According to the legal community on the 1st, the Changwon District Court on April 15 ruled in favor of the plaintiff in a lawsuit filed by Mr. A against the Gyeongnam Provincial Police Agency to revoke the revocation of his driver's license.

Mr. A was caught driving under the influence in 2023. His blood alcohol concentration at the time was 0.030%. This is the figure corresponding to the threshold of the "intoxicated state" in which driving is prohibited. He was subsequently caught again in 2024 driving with a blood alcohol concentration of 0.048%.

Accordingly, the police revoked Mr. A's driver's license under the Road Traffic Act, which requires license revocation when a person drives under the influence two or more times, even if the blood alcohol concentration is at the license-suspension level (0.030% or higher but below 0.080%).

Mr. A appealed and filed an administrative lawsuit. He argued that at the first drunk driving arrest, the breath measurement was taken a certain time after driving ended, and since that point fell within the rising phase of blood alcohol concentration, the level was below 0.030% while he was actually driving. On this basis, Mr. A argued that since he had been caught driving under the influence only once, his license should not be revoked.

The court accepted Mr. A's argument. Generally, blood alcohol concentration is known to reach its peak between 30 and 90 minutes after drinking ends. At Mr. A's first drunk driving arrest, the blood alcohol concentration measurement was taken 31 minutes after drinking ended and 16 minutes after driving ended, so it fell within the rising phase.

On this basis, when the court applied the "Widmark formula" used by investigative agencies, Mr. A's blood alcohol concentration at the time of driving was calculated as 0.0295%. The Widmark formula is a method used by investigative agencies to back-calculate the blood alcohol concentration at the time of driving when they conduct a breath test on a driver some time later.

For this reason, the court found that it could not conclude that Mr. A's blood alcohol concentration at the time of driving reached 0.030%. Since his first drunk driving record was not recognized, the court judged that the license revocation based on "being caught driving under the influence twice" was unlawful.

Attorney Ko Jeong-hang of Daeryun LLC, who represented Mr. A, said, "The key to winning was meticulously reviewing the legal validity of the past record that served as the basis for the license revocation," adding, "A mechanical disposition cannot be made simply because there is a past record, and by scientifically analyzing the time difference between the measurement point and the driving point, we were able to correct the client's unjust harm."

Reporter Jeong Cheol-wook

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0.03% on Breathalyzer 16 Minutes After Leaving the Wheel...Court Says "Considering the Rising Phase, Below the Enforcement Standard" (Go to link)