Supreme Prosecutors' Office Continues Applying 'Yoon Chang-ho Act' for 'Refusal of Breathalyzer Test'... "Constitutional Court's Unconstitutionality Ruling Has No Effect"

Seoul Seocho-dong Supreme Prosecutors' Office.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] Despite the Constitutional Court's ruling that the provision of the Road Traffic Act imposing aggravated punishment on drivers who have committed drunk driving more than twice (commonly known as the ‘Yoon Chang-ho Act’) is unconstitutional, the Supreme Prosecutors' Office has instructed local prosecutors' offices to continue applying aggravated statutory penalties to drivers who refuse breathalyzer tests more than twice.

This measure is based on the interpretation that the Constitutional Court's ruling, which declared the part of Article 148-2, Paragraph 1 of the Road Traffic Act concerning ‘persons who violate Article 44, Paragraph 1 (prohibition of drunk driving) two or more times’ as partially unconstitutional, does not extend its effect to refusals of breathalyzer tests.

On the 1st, the Supreme Prosecutors' Office announced that it had issued additional instructions the previous day to local prosecutors' offices to handle ‘repeat offenses of breathalyzer refusal’ and ‘cases combining drunk driving and breathalyzer refusal’ in the same manner as before.

The Supreme Prosecutors' Office stated that after comprehensively reviewing the subject and reasons of the Constitutional Court's decision, it judged that the effect of the unconstitutionality ruling does not apply to the breathalyzer refusal part, and thus issued these instructions.

The provision of Article 148-2 (Penalties), Paragraph 1 of the Road Traffic Act, which the Constitutional Court declared unconstitutional, states that ‘persons who violate Article 44, Paragraph 1 (prohibition of drunk driving) or Paragraph 2 (obligation to submit to breathalyzer test) two or more times shall be punished by imprisonment for not less than two years and not more than five years or a fine of not less than 10 million won and not more than 20 million won.’

This provision was amended in 2018 following the ‘Yoon Chang-ho incident,’ changing the aggravated punishment from drivers who committed drunk driving three or more times to those who do so two or more times, while raising the statutory penalties from imprisonment of ‘not less than one year and not more than three years’ and fines of ‘not less than 5 million won and not more than 10 million won’ to higher levels.

The provision reviewed by the Constitutional Court was the old law before the amendment, but the current Road Traffic Act provision contains the same content.

On the 25th of last month, the Constitutional Court ruled that the part of Article 148-2, Paragraph 1 of the Road Traffic Act imposing aggravated punishment on drivers who have committed drunk driving two or more times was unconstitutional because it applied aggravated punishment uniformly without any time limitation between the first offense and recidivism and without considering the nature of the offense, violating the principle of proportionality between responsibility and punishment.

Since all parties involved in the three consolidated cases were drivers who had committed drunk driving two or more times and none had refused breathalyzer tests, the Constitutional Court did not separately review the aggravated punishment for ‘those who refuse breathalyzer tests two or more times.’

Previously, following the Constitutional Court's ruling, the Supreme Prosecutors' Office instructed each prosecution office to ▲ prosecute ongoing investigations under the general drunk driving provisions while actively reflecting aggravating factors in sentencing, ▲ amend indictments for ongoing trials while strengthening sentencing, and ▲ in finalized cases, take measures such as amending indictments during retrial procedures if a retrial petition is filed.

This content was produced with the assistance of AI translation services.