Requesting 'Alcohol Test' Without Business Owner's Consent... Supreme Court Rules "Illegal Procedure"

Court: "Search Without Justifiable Grounds Is Illegal"

The Supreme Court has ruled that if the police enter a business or building without the permission of the owner or manager and demand a breathalyzer test from a suspected drunk driver, the refusal to comply cannot be punished.

The Supreme Court's First Division (Presiding Justice Oh Kyung-mi) announced on the 7th that it upheld the lower court's ruling, which found Mr. A guilty of unlicensed driving under the Road Traffic Act but not guilty of refusing the breathalyzer test, sentencing him to six months in prison with a two-year probation.

In April 2021, Mr. A drove about 300 meters while intoxicated and entered a massage parlor. Someone who saw Mr. A driving under the influence reported it to the police, who then arrived and entered the massage parlor to demand a breathalyzer test from Mr. A. The police suspected drunk driving because Mr. A smelled of alcohol and had bloodshot eyes, but Mr. A refused the test. Ultimately, Mr. A was prosecuted for unlicensed driving and refusal to take the breathalyzer test.

The first and second trials recognized only the unlicensed driving charge as guilty and sentenced him to six months in prison with a two-year probation. They ruled that the police's search of the massage parlor and demand for a breathalyzer test were illegal because they lacked proper grounds.

During the trial, the police claimed they had obtained consent from the massage parlor owner. They testified that the owner nodded to give consent, cooperated by pointing to the room where Mr. A was, and allowed entry, but the owner testified in court that they "did not really know." The CCTV footage inside the massage parlor did not show the owner nodding or any such behavior.

The Supreme Court also agreed with the lower courts' judgment.

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