Repeat drunk driving: where does the ‘10 years’ start?

When someone caught drunk driving comes in for a consultation, after their blood alcohol reading there is one more thing we always ask: whether they have ever been punished for drunk driving before, and if so, when that sentence became final. For a second offense, that single date changes which provision applies.

For a first offense, the reading sets the statutory penalty

• 0.03 percent or more but less than 0.08 percent: imprisonment for up to 1 year or a fine of up to 5 million won
• 0.08 percent or more but less than 0.2 percent: imprisonment for 1 to 2 years or a fine of 5 million to 10 million won
• 0.2 percent or more: imprisonment for 2 to 5 years or a fine of 10 million to 20 million won

These ranges are all set out in Article 148-2(3) of the Road Traffic Act. What is punished is the reading at the time of driving, so depending on the gaps between the time of the last drink, the time of driving and the time of measurement, there may be room to dispute the reading at the time of driving. However, the mere possibility that the level was still rising does not decide the matter.

The 10 years are counted from the date the sentence became final

If you drive drunk again within 10 years of the date a sentence of a fine or heavier for drunk driving or refusing a breath test became final, the aggravated provision applies. Even for a reading of 0.03 percent or more but less than 0.2 percent, a minimum penalty applies: imprisonment for 1 to 5 years or a fine of 5 million to 20 million won (Article 148-2(1)). The standard is not the date you were caught but the date the sentence in the earlier case became final, and that sentence counts toward the 10 years even if it has lapsed.

If you find your earlier judgment or summary order (약식명령) and confirm the exact date it became final, you can immediately see which provision will apply. You should also be aware that even if 10 years have passed, it is still considered a prior conviction for the same type of offense in sentencing.

Your license is handled separately from criminal punishment

Suspension and revocation of a driver's license are administrative sanctions by the provincial police agency commissioner, so they proceed separately from the criminal process. Under Appended Table 28 of the Enforcement Rules of the Road Traffic Act, a reading of 0.03 percent or more but less than 0.08 percent carries 100 penalty points and a license suspension, with the suspension period in principle counted as one day per penalty point. A reading of 0.08 percent or more, injuring someone while under the influence, or refusing a breath test leads to revocation. For someone with a prior drunk driving record, a reading of just 0.03 percent or more means revocation.

If driving is your livelihood, you can file an objection seeking a reduction within 60 days of the date of the sanction. However, you are not eligible for a reduction if your blood alcohol concentration exceeded 0.1 percent, you injured someone, you refused a breath test, or you have a drunk driving record within 5 years. A person whose license was revoked for a repeat violation within 5 years must obtain a conditional license with an alcohol ignition interlock device installed to drive again (Article 80-2 of the Road Traffic Act).

Sentencing materials must be verifiable

Rather than a single letter of apology, what is taken into account is material that can actually be verified, such as having sold your car or stopped driving, or records of alcohol counseling or treatment. If the fine in a summary order feels too heavy, you can request a formal trial within 7 days of being notified, but the fine may also go up, so you should weigh this carefully before making the request.