의식상실한 음주운전 피의자에 대한 채혈

Till now Investigative agencies have gotten the blood samples of unconscious drunk driving suspects with the consent of suspects' family member or the expost facto warrant of the court. However, the former is not legal investigation method because the suspect oneself do not submit the sample voluntarily, the latter is the same because the legal expost facto warrant which can be applied to this case does not exist in Korean criminal procedure law. Comparatively in this case, American law acknowledges the legality of the sampling of the blood without warrant in exigent circumstance and Deutsch law adopts the provision of blood sampling without warrant in “Gefahr im verzug,”while There is no way making blood sampling legal in Korea for Constitution provides the principle of warrant in search and seizure. However, the direct and crucial evidence can not be collected but for the blood sampling, which bring about unfairness between the conscious and the unconscious and does not harmonize with the purpose of Korean criminal law punishing drunken driver heavily and justice of the court. In addition,investigative agencies might rely on the voluntary submission of the doctor who treats the unconscious, which made the agencies avoid the eye of the court. Consequently, it is necessary to review that the blood is accepted as admissible evidence. It must be accepted as admissible evidence because it does not violate the purpose on the system of search and seizure and the constitutional rights severely and investigative agencies can not help collecting evidences illegally, for no other way of legal process. Furthermore, it is considerable the search and seizure parting from the arrest in exigent circumstance is introduced in Korean criminal procedure law.