The question of what type of warrant is required in order to administer compulsory blood extraction without the intoxicated driver’s consent is closely related to the legal characteristics of the compulsory blood extraction which is a kind of a compulsory measure. Prior Supreme Court precedents had not clarified the legal characteristics of compulsory blood extractions, and so it was unclear which type of warrant allows compulsory blood extractions. This Supreme Court decision merits attention since it explicitly holds that a compulsory blood extraction is permitted by issuing a ‘warrant of permission of expert examination’ or a ‘confiscation warrant.’Regarding the legality of warrantless compulsory blood extractions, although there was the need to recognize an exception to the warrant requirement principle in order to permit compulsory blood extraction, prior Supreme Court opinions provided no clarification of the provisional grounds in the Criminal Procedure Act upon which such warrantless compulsory blood extractions can be sustained. This Supreme Court decision is important because the Court, while maintaining the previous posture that it will strictly adhere to the warrant requirement principle, recognized Article 216 (3) of Criminal Procedure Act as the grounds upon which warrantless compulsory blood extractions are allowed, thereby conspicuously enumerating the specific requirements for permissible warrantless compulsory blood extractions.

[대상판결] 대법원 2012. 11. 15. 선고 2011도 15258 판결
  1. 사실관계
  2. 공소사실의 요지
  3. 원심 법원 판결(수원지방법원 2011. 10. 20. 선고 2011노3958)
  4.대법원 판결(대법원 2011도15258)
 [검 토]
  I. 강제채혈의 법적 성질
  II. 사전영장에 의하지 않은 강제채혈의 허용 요건
 [참고문헌]
 [Abstract]

• 김정옥(광주지방검찰청 검사) | Jeong Ok Kim