Drinking and driving has caused many deaths and suffering from injuries. Drunk driving is a serious crime that threatens life and and property. Some drivers who have been drinking, however, when stopped at a breath test checkpoint try to avoid punishment instead of admitting their wrongdoings. They make excuses such as “I only drank a little” or “This is my first time drunk driving.” Even though there may be no premeditated malice, drunk driving is negligence that can easily result in homicide. Current penalties for drinking and driving have actually only been a slap on the wrist. Here is a look at a revision in the traffic laws and recommendations on how to respond at a police check point.
Major Changes to DWI Punishment Regulations
A Classification of DWI Punishment Standards (Under second clause of Article 148)
Based on alcohol percentage level and number of violations, the DWI Punishment Standards call for either a jail sentence of up to three years or a fine of up to 10 million won
▲ This change in traffic laws will enter into effect six months following the day of its promulgation (June 8, 2011).
Thrust of the change order
Punishment standards do need to reflect the amount of alcohol found in the blood because the risk of DWI accidents increases dramatically with higher alcohol consumption.
The number of DWIs has been gradually decreasing, yet the rate for violations three times or more continues to rapidly climb. It is thus imperative that legal punishment for habitual drunk driving to be raised, to call attention to this problem and attempt to correct it.
The response to the breathalyzer requirement
1) Traffic laws define that a police officer can ask any driver to take a breath test should the officer see a need to secure traffic safety and obviate danger or if there seems to be reason for the driver to admit to driving the car while intoxicated. In these situations, the driver is required to to take a breath test administered by the police officer . (Article 44)
2) If a driver disputes the results of the breath test then according to the regulations, with the driver’s consent, the alcohol level in the blood can be measured again by means of a blood sample. If a driver is charged with driving under the influence after the breath test, but is not drunk, the driver may dispute the results.
As the police officer gives the breath test to the driver, the police officer may ask if the driver has used products such as a mouthwash that may contain alcohol, and the time at which the mouthwash was used. The driver is allowed rinse the mouth and gargle with water to remove what alcohol may be present in the mouth from the mouthwash to prevent the breathalyzer from giving an incorrect measurement. The driver must then take the breath test again after around 20 minutes, the time needed to wash out remaining alcohol from the mouth from the last usage. If the driver is again tested positive, even though he may not have drunk any alcohol, the driver may have his blood alcohol measured at the nearest hospital. The blood sample will be sent to the National Scientific, Criminal & Investigation Laboratory. A driver who wishes to dispute a positive breath test at a police check point can respond wisely by stating that he has the right to gargle with water and that he take the test again after 20 minutes.
Comment about the revised law
Under the current law, a fine of 500,000 to 1 million won is to be paid for having under 0.1% blood alcohol content (BAC), 1 million to 2 million won with a BAC of 0.1% to 0.2% and 2 million to 3 million won over a BAC of 0.2%. This is woefully inadequate to serve as a deterrent. When the revised law is implemented, however, valid punishment may be meted. Starting next year at the earliest the legal BAC limit will be lowered from 0.05% to 0.03%. This means that a person of average weight who drinks even only one or two glasses of soju is caught in a patrolled inspection stop can be charged with drunk driving.
Oh Geun Young is a graduate student at Jeju National University Law School and a legal counselor at the JNU’s Legal Clinic. JNU Law School graduate student Son Minsoo contributed to this article.
Disclaimer The information provided here is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in Korea. Readers should consult a lawyer for detailed legal advice. As a service to the non-Korean community, the Jeju National University Legal Clinic (064-754-2989) is available for consultations during regular business hours, Monday to Friday.
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