When a Drunk Driving Accident Injures Someone in Korea

In Korea, a drink-driving accident that injures someone can be charged under two different provisions, and which one applies changes the sentencing exposure dramatically. In neither case does settling with the injured person stop the prosecution. Two questions therefore drive everything: which provision applies, and what can still be achieved after the charge is fixed.

Quick answer

Ordinary injury caused by negligent driving falls under article 3(1) of the Act on Special Cases Concerning the Settlement of Traffic Accidents: up to five years' imprisonment without labour, or a fine up to 20 million won. Where the driver was in a state in which normal driving was difficult because of alcohol or drugs, article 5-11(1) of the Act on the Aggravated Punishment of Specific Crimes applies instead: one to fifteen years' imprisonment, or a fine between 10 and 30 million won. If death results, the penalty is life imprisonment or three years or more, and no fine is available.

The two provisions side by side

A settlement does not stop a drink-driving case

Article 3(2) of the Traffic Accident Special Cases Act provides that no prosecution may be brought for injury caused by occupational negligence where the injured person does not wish the driver punished. That is the rule most people have in mind when they say a case can be settled.

Its proviso 8 removes driving while intoxicated from that protection. The statutory threshold for intoxication is a blood alcohol concentration of 0.03 per cent or more (Road Traffic Act art. 44(1), (4)). So where alcohol is involved, the case can proceed even if the injury is charged as ordinary negligence rather than dangerous driving. In that situation the settlement goes to sentence, not to whether there is a prosecution at all.

Crossing the limit does not by itself make it dangerous driving

Dangerous driving injury is not established simply because the breath test exceeded the limit. The Supreme Court has held that, unlike the drink-driving offence itself, this offence requires that the driver was actually in a state in which normal driving was difficult because of the influence of alcohol, and that the injury was caused while driving in that state (Supreme Court, 25 January 2018, 2017Do15519).

In that case the driver had shared a bottle of beer, turned right out of an alley and struck a pedestrian lightly with the bumper. There was no abnormal driving immediately before the collision, and taking account of the driver's demeanour afterwards, the reason for going to the police station, the account given in interview and a report recording that there was no staggering, the Court held it could not be concluded that normal driving was difficult. The conviction was quashed.

The converse also holds. Where the driving before and after the collision, or the driver's speech and conduct, was abnormal, dangerous driving injury is readily found. In practice this is the most heavily contested issue in these cases, and it turns on the whole record rather than on one figure: dashcam or CCTV footage, the manner of the collision, witness observations, and the report completed at the roadside.

What else is charged alongside

Where dangerous driving injury is established, a charge under the Traffic Accident Special Cases Act is absorbed into it and does not stand separately (Supreme Court, 11 December 2008, 2008Do9182).

The drink-driving offence is different. It has a distinct legislative purpose and protects a different interest, so it is charged together with dangerous driving injury (Supreme Court, 13 November 2008, 2008Do7143). And where the driver has a final conviction of a fine or more for drink driving within the previous ten years, the drink-driving count is aggravated under article 148-2(1) of the Road Traffic Act.

Drugs are covered by the same provision

Article 5-11 refers to the influence of alcohol or drugs, so driving impaired by medication and causing injury can raise the same provision. Proviso 8 of article 3(2) of the Traffic Accident Special Cases Act similarly excludes driving in a state in which normal driving is likely to be impaired by drugs, contrary to article 45 of the Road Traffic Act.

Why the distinction matters for a foreign national

Whether a fine remains possible, and what its minimum is, depends entirely on which provision is used. A case under article 5-11 cannot be resolved by a fine below 10 million won, and a fatal case cannot be resolved by a fine at all. The charging decision also feeds directly into the immigration consequences, which are assessed separately and can begin before the criminal case ends.

The record of the driving itself, rather than the breath test number, is where the case is decided. If you have been notified of an investigation, the footage and the roadside report should be reviewed before any interview. See also our guides to DUI consequences for foreigners and to the alcohol interlock licence.

Contact Taeshin Law Firm for a confidential consultation in English.