Blog, Criminal

– A possible problem from Daeri Unjeon Service and the recent court decisions about them – 

Q: I’m drunk so I called a driver to drive my car for me, but the driver had just left me. Can I drive my car? 

A: If it is to avoid immediate danger, then it is okay. If not, no you should not. 

What is Deari driver service? 

As you may know, Koreans love to drink. Drinking party is a common and universal tradition in Korean companies. There were times when people were quite generous to driving under the influence (drunk driving), but the era has changed. Korean society is now very harsh and strict against drunk driving. As a result, the designated driver service became very common and popular in Korea. It is also called ‘Daeri Unjeon (대리운전)’, or just ‘Daeri (대리).’ Deari means to substitute or to do something by proxy.

When you call a Deari, then the driver (기사, gisa) will come to your spot and drive your car to your place, and you may just sit in the passenger seat, probably sleeping. You pay the driver when the driving is over. The driver earns the money, and you do not get punished for drunk driving, even though you brought your car to the drinking party. Sounds like a very nice and fair trade. 

A Drunk Driving Trap – “Induced Drunk Driving”

The problem is that some bad designated drivers may want to take advantage of you. You are now with your car, and you need to go home, but you cannot and must not drive your car right now. You are now in a very weak position, and some bad driver may claim for an additional fee. And when you refuse, they just leave you. You and your car are now on the road or in a parking lot, without a sober driver. As you do not have any other option, you park your car in the parking lot by yourself, driving a few meters. You are induced to commit drunk driving. 

In that case, the Daeri driver may be hidden somewhere else and taking a film of you driving your car. Daeri driver will call the police, report that you had driven under the influence, and the police will ask you to take a sobriety test. Your result will be “positive,” which is a negative sign in your life. 

Unfortunately, that shall consist of the crime of driving under the influence. You should not drive when you are drunk, either on the road or in the parking lot, and that is the law. This is a classic dirty trick, but still, a lot of car owners get pushed over by this. No matter what, you had driven a car, and you were drunk. That makes you guilty.

Justification for Drunk Driving – The Defense of Necessity

However, recently, some lower courts have started to decide that those types of drunk driving are not guilty. 2019gojung162 decision, decided on June 5^th, 2019, was one of those. Let’s go over the case briefly. 

The gist of the fact

• The defendant had already been punished for drunk driving two times before. 
• The defendant called the Daeri driver, and they had a quarrel, and the Daeri driver parked the car on a road in front of a motel. 
• The car was not parked neatly, and there was some distance between the right-side end of the road and the car, which may cause an interruption for the traffic. Some cars even had to cross the yellow centerline of the road to avoid the parked car. 
• The defendant had to drive the car into the motel parking lot while there were no other cars nearby. 
• The blood alcohol content was 0.072% which exceeds the standard. 
• The defendant was caught by the police, who were mobilized upon a report.

In this decision, the court judged the act of the defendant is not punishable on the ground of “defense of necessity (긴급피난)”. 

Criminal Act, Article 22 (Necessity)

(1) An act which is performed in order to avoid impending danger against the one’s own or another person’s legal interest shall not be punishable when there are reasonable grounds.

To satisfy “necessity,” the act must be an act with reasonable grounds to avoid impending danger against one’s own or another person’s legal interest. To fall under “the act with reasonable grounds,” the act should be the only method to avoid the danger, it should also be the least damaging method to the victim, and the protected legal interest must be a superior benefit to the damaged interest. Lastly, the act itself shall be in accordance with the spirit of the whole law. 

In this case, it is true that the defendant had committed drunk driving. However, he drove his car only for the good traffic on the road and to avoid a possible car accident, and there was no other option but to drive his car into the parking lot, as the defendant could not ask for parking from other passersby. The driving distance was only 10 meters. Overall, the court judged the defendant’s act as an act of necessity and, therefore a justifiable act. 

2017gojung1158 decision of Ulsan District Court is another one that had sentenced non-guilty to a drunk driver, with similar reasons.

The gist of the fact

• The defendant had called the Daeri driver and made the him drive the car to the defendant’s home. 
• A quarrel occurred between the Daeri driver and the defendant, and the driver left the car and the defendant on a one-way two-lane roadway. 
• The defendant drove the car for 300 meters and parked in a nearby gas station.
• The defendant called the police and reported that he had committed drunk driving. 
• The blood alcohol content was 0.140%. which is very high. 

In this case, the court decided that the act of the defendant consisted of a crime. However, the court also decided that the act of the defendant was an act out of necessity which is stipulated in Criminal Act, Article 22. 

The court judged that the driving of the defendant was to avoid a possible car accident that may have been caused by this car stopped midst a narrow road. Moreover, the defendant had only driven for about 300m, and he stopped driving once he arrived at a gas station. Lastly, the defendant had turned himself in to the police right after driving. In sum, the drunk driving of the defendant was to achieve and protect a superior interest of the law, and that is justifiable. 

Not Always Defensible

However, you must not think that every drunk driving after Deari driver left is justifiable. It is basically a crime to drive when you are drunk, no matter Deari driver was there or not, but only justifiable in certain cases mentioned above. For example, in 2017gojung389 decision, decided on September 7th, Seoul Southern District Court decided that the defendant was guilty. 

The gist of the fact

• The defendant called the Deari driver to drive his truck and the Deari driver parked in front of the destination (shop). The defendant asked the Deari driver to park again as the truck was blocking the entrance of the shop. The Deari driver refused and just left. 
• The defendant got into the truck and moved 20~30 centimeters for the convenience of the guests. 
• The defendant was drunk, and it was 3:00 AM. 

In the decision, the court did not accept the defendant saying that it was a justifiable act. It was 3:00 AM, and the shop was closed. There was no urgent need to secure the path of the guests of the shop. The danger was not “impending” in this case. The defendant drove his truck for the good of the shop, which is kind and nice, but that shall also consist of a crime. 

Conclusion

It was not until the last few years that the court started to view this kind of “induced drunk driving” as non-guilty. However, you must remember that drunk driving itself consists of a crime, and you need a strong justification to defend yourself. Moreover, satisfying the requirements of the “necessity” is never an easy job. There must be an impending danger or a possibility of danger to occur, such as a car accident.