When you may need advice
- I blew into the breathalyzer several times, but I was booked for refusal because they said I did not blow properly
- I protested that I had not been driving, and it was treated as refusing the test
- I asked for a blood test instead of a breath test, and it was treated as a refusal
- I left without blowing into the alcohol screening device
- My license was revoked for test refusal and I am worried about my livelihood
Relevant laws
Road Traffic Act (도로교통법) Article 44(2) and (3)
A police officer may test a driver by breath analysis when needed for traffic safety and to prevent danger, or when there is good reason to believe the person drove while intoxicated, and the driver must comply. A driver who disagrees with the result can be tested again, for example by a blood sample taken with consent.
Road Traffic Act Article 148-2(1), Item 1 and (2), Item 1
A person who there is good reason to believe is intoxicated, who drove a motor vehicle and does not comply with the test, is punishable by 1 to 5 years in prison or a fine of KRW 5 million to KRW 20 million. A repeat violation within 10 years from the date a sentence of a fine or heavier became final is punishable by 1 to 6 years in prison or a fine of KRW 5 million to KRW 30 million.
Act on Special Cases Concerning the Settlement of Traffic Accidents (교통사고처리 특례법) Article 3(2), proviso
If you cause an accident that injures someone and do not comply with a request for an alcohol test, you can be prosecuted regardless of comprehensive insurance or the victim's wish not to punish you. This does not apply if the driver requested or agreed to a blood test.
Statutes are summarized. The official Korean text is available at the Korea Law Information Center (law.go.kr).
Refusal requires that your unwillingness was objectively clear
The Supreme Court treats a failure to comply as a case where it is objectively clear that the driver had no intention of taking the test. This is judged by looking at your words and attitude at the time, how and why the officer asked for the test, documents such as the report on the detected intoxicated driver (주취운전자 적발보고서), and the reasons and time of the refusal as a whole (Supreme Court Decision 2016도16121, June 8, 2017).
The same decision held that refusing the earlier alcohol screening device test, while knowing that a breathalyzer test was to follow, can also count as test refusal. Do not assume it is fine because it was only a screening device.
The order of the breath test and the blood test
A blood test is set out as a way to test again when you disagree with the breath test result. If you refuse the breath test itself and only ask for a blood test, there is a risk it will be treated as test refusal.
If lung disease or an injury made it hard for you to blow enough air, you need to explain this with a medical certificate and medical records. Also write down, in time order, how many attempts you made and whether the officer explained how to do it.
We check whether you were driving and whether there was good reason
The crime of test refusal is limited to cases where you drove a motor vehicle, and there must be good reason to believe you were intoxicated. If you were not driving, or the alcohol was drunk somewhere else long after you finished driving, that premise can be disputed.
If you do not comply with the test, your license is always revoked (Road Traffic Act Article 93(1), Item 3), and you are excluded from reductions for those who drive for a living. The disqualification period is 1 year as a rule, but 2 years if you caused an accident or have two or more drunk driving or test refusal offenses (Article 82(2)).
Factors that affect the outcome and sentence
Factors that work against you
- · A drunk driving or test refusal record within 10 years
- · Refusing the test after causing an accident
- · Fleeing the checkpoint, or verbally abusing or assaulting an officer
- · Clearly stating a refusal several times
Factors that work in your favor
- · A physical condition that made it hard to blow
- · Circumstances showing the test method was not explained well enough
- · A short driving distance and understandable circumstances
- · Efforts to prevent reoffending, such as selling the car or alcohol treatment
How our Criminal Law Center handles your case
- 1
Reconstruct the stop
We rebuild, in time order, when the test was requested, how many attempts were made and what the officer told you.
- 2
Check the records
We check whether the intoxicated driver report and any footage of the stop exist, and look at how to obtain or review them through an information disclosure request or file inspection.
- 3
Prepare for and attend questioning
We rehearse for leading questions about whether you meant to refuse, and attend the questioning with you.
- 4
Legal opinion and sentencing materials
We submit a written opinion arguing that no refusal took place, or gather sentencing materials.
Lawyers handling these cases
Hansol Kim Managing Partner
Former prosecutor at the Incheon District Prosecutors' Office, the Ansan Branch of the Suwon District Prosecutors' Office and the Hongseong Branch of the Daejeon District Prosecutors' Office
View profile →
Bonwoo Koo Managing Partner
Economic criminal cases such as Capital Markets Act violations, investment fraud, embezzlement and breach of trust
View profile →
Frequently asked questions
I blew into the device three times, but no reading came out.
Several attempts alone do not automatically count as refusal. However, if you are found to have deliberately blown weakly, it can be treated as refusal, so you need to explain the situation and your physical condition in detail.
I asked for a blood test. Is that a refusal?
A blood test is a way to test again when you disagree with the breath test result. If you did not take the breath test and insisted on a blood test from the start, it can be treated as test refusal.
Can test refusal end with a fine?
The statutory penalty includes a fine of KRW 5 million to KRW 20 million, so a fine can be imposed. However, if you have an alcohol-related record within 10 years, the statutory penalty goes up and a prison sentence becomes more likely.