When you are caught drink-driving

The reading taken at the checkpoint starts two separate procedures. One is the criminal procedure that decides a fine or imprisonment; the other is the administrative procedure that suspends or revokes your licence. The licence decision often comes before the criminal case is decided, and any challenge to it must be made within its own deadline, separately from the criminal case.

The standards for licence action are set out in Annex 28 of the Enforcement Rules of the Road Traffic Act (도로교통법 시행규칙 별표 28). A blood alcohol level of 0.03% or more but under 0.08% means 100 penalty points and a suspension, with each point generally counting as one day; 0.08% or more, causing an accident that injures someone while drunk, or refusing a test leads to revocation. If you have been caught drink-driving before and are caught again, your licence is revoked even if this reading is only at suspension level (Road Traffic Act (도로교통법) Article 93(1)(ii)).

Statutory penalties are set by blood alcohol level band (Road Traffic Act Article 148-2(2) and (3)).

• 0.03% or more but under 0.08%: imprisonment of up to 1 year or a fine of up to 5 million won
• 0.08% or more but under 0.2%: imprisonment of 1 to 2 years or a fine of 5 million to 10 million won
• 0.2% or more: imprisonment of 2 to 5 years or a fine of 10 million to 20 million won
• Refusing a test: imprisonment of 1 to 5 years or a fine of 5 million to 20 million won

If you offend again within 10 years of the date a sentence of a fine or heavier became final for drink-driving or refusing a test, the aggravated bands apply. This is the case even if the earlier sentence has since expired (Road Traffic Act Article 148-2(1)).

For 0.03% or more but under 0.2%, the penalty is imprisonment of 1 to 5 years or a fine of 5 million to 20 million won; for 0.2% or more, imprisonment of 2 to 6 years or a fine of 10 million to 30 million won; for refusing or obstructing a test, imprisonment of 1 to 6 years or a fine of 5 million to 30 million won. If someone was injured, dangerous driving causing injury under the Act on the Aggravated Punishment of Specific Crimes (특정범죄 가중처벌 등에 관한 법률) may also be an issue.

It is easy to think that refusing a test means there is no reading, so you will get off lightly. If there are reasonable grounds to believe you were drunk and you refuse to be tested, that is the offense of refusing a test, and its penalty is heavier than the 0.08% to under 0.2% band. Drinking more after driving to make testing difficult is also punished separately (Road Traffic Act Articles 44(5) and 148-2(2)(ii)).

If you do not accept the breath test result, you can be retested, for example by a blood sample, with your consent (Article 44(3)). If you want to dispute it later, you must ask for this at the scene.

In drink-driving cases, the reading and your history are already fixed, so most cases have little to dispute. What remains open is how well you have prepared the materials considered when deciding the outcome and sentence. Also keep, and do not throw away, any documents about the test result you were given at the checkpoint.

• A time-ordered account of how far you drove and why (designated driver call records, etc.)
• Efforts to prevent reoffending, such as selling your car or using public transport
• A certificate of completing a drink-driving prevention course
• Materials showing family dependants and job circumstances
• If there was an accident, the victim's settlement agreement and insurance records

If your licence is revoked for drink-driving, you cannot get a new one for a set period: 1 year from revocation for a first offense; 2 years if you have offended twice or more or caused a traffic accident while drink-driving; 3 years if you have caused two or more drink-driving accidents; and 5 years if you injured someone and left without taking the necessary steps, or caused a fatal accident (Road Traffic Act Article 82(2)).

However, if the criminal case ends with a final sentence lighter than a fine, a suspended sentencing (선고유예) or a suspension of indictment (기소유예), you can get a licence again even within this period (proviso to the same paragraph). The end of the disqualification period does not mean you can drive straight away; you must go through the required training and tests again.

At the consultation, we check how the test was done, the reading and your history, and set out which sentencing materials are likely to be accepted. Before police questioning, we practise likely questions with you, attend the questioning, and submit a defense counsel's written opinion before the decision. If you have been summoned after a drink-driving check, contact us through the chat on this page.