"Refusal to Take Breathalyzer Test Cannot Be Criminally Punished If Fine Has Been Paid"

Published 29 May.2025 07:05(KST)

Acquittal Finalized for Refusing Breathalyzer Test on Electric Wheel

If a man who drove an 'electric wheel (personal mobility device)' refused a police request for a breathalyzer test, paid a fine, and was then prosecuted again for the same charge due to a misinterpretation of the law, this constitutes double jeopardy and he cannot be criminally punished, according to a Supreme Court ruling. On May 1, the Supreme Court’s Criminal Division 2 (Presiding Justice Park Youngjae) dismissed the prosecutor’s appeal and upheld the lower court’s acquittal of Mr. A, who had been indicted for refusing a breathalyzer test (violation of the Road Traffic Act) (2025Do1447).

Photo to aid understanding of the above article. Pixabay

[Facts of the Case]

At around 4:35 a.m. on June 28, 2023, a report was filed that "an intoxicated person drove an electric wheel into a restaurant" in Osan, Gyeonggi Province. Responding officers found Mr. A, whose face was flushed and who had been drinking with companions, and demanded that he submit to a breathalyzer test for about 30 minutes. Mr. A refused the test without a valid reason, and the police issued a notice of a fine under the Road Traffic Act. Mr. A paid the 100,000 won fine on July 10, 2023. Later, the officer in charge determined that the electric wheel Mr. A had driven was not just a 'personal mobility device,' but rather a 'motorized bicycle' under the Road Traffic Act. The officer then canceled the previous fine notice and referred the case to the prosecution.

[Lower Court Rulings]

The prosecution indicted Mr. A, but both the first trial and the appellate court ruled that "since the fine has already been paid, he cannot be criminally punished again for the same act," and acquitted him.

Under the Road Traffic Act, the fine system provides a special exception to criminal prosecution: if a person pays the fine after being notified by the chief of police, prosecution will not be pursued for that act. Unless there are special circumstances, a person who has paid a fine after being notified cannot be punished again for the same offense.

The first-instance court stated, "Once a fine notice has been issued for an offense, the chief of police generally cannot request a summary trial until the payment period specified in the notice has expired, nor can the previously issued notice be arbitrarily canceled for the purpose of criminal prosecution. The officer in charge or the police chief cannot arbitrarily cancel a notice after the fine has already been paid, and even if there was a mistake or ignorance of the law by the officer, the defendant’s procedural rights must be protected." The court added, "By paying the fine, the defendant acquired a legal effect equivalent to a final judgment for the offense. Since the facts of this case are identical to those covered by the fine notice, and considering the normative elements in determining the objective scope of res judicata, this constitutes prohibited double jeopardy, and an acquittal is warranted."

In the appeal, the prosecutor argued that "if the act does not actually constitute an offense, a fine paid due to a mistaken notice has no legal effect." However, the court rejected this, stating, "There is no legal basis for the prosecutor’s claim. According to the provisions of the Road Traffic Act and the regulations regarding fine notices, as well as legal principles, the effect of a fine notice and payment?issued by an investigative agency with the authority to determine whether an act constitutes an offense?extends to all charges based on the same fundamental facts. The prosecutor’s argument, which is premised on a different legal interpretation, cannot be accepted."

[Supreme Court Ruling]

The Supreme Court dismissed the appeal and upheld the lower court’s decision. The Court stated, "The lower court’s ruling does not violate the rules of logic or experience, nor does it exceed the limits of free evaluation of evidence. There is also no misunderstanding of the legal principles regarding the effect of a fine notice."