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Univ. of South Carolina School of Law

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Sunday, February 21, 2010

Eyes Wide Shut, Take 2: Supreme Court Of Illinois Finds HGN Test Satisfies Frye Test, Just Not In The Case Before It

Back in October 2007, I posted an entry about People v. McKown, in which the Supreme Court of Illinois found that an Illinois trial court erred in taking judicial notice of the general acceptance of the reliability of Horizontal Gaze Nystagmus (HGN) test results in a drunk driving case. The court thus reversed the trial court's opinion, holding that a Frye hearing had to be held to determine whether there was general acceptance of the HGN test in the relevant scientific community. On Friday, the Supreme Court finally addressed the validity of that hearing in People v. McKown, 2010 WL 572082 (Ill. 2010), an opinion that is a victory for Illinois prosecutors in general but a loss for them in McKown itself.

In its opinion, the Supreme Court of Illinois began by explaining the basics of nystagmus and the HGN test:

Nystagmus is “an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.”...The methodology employed by law enforcement officers for conducting an HGN testing as a part of field-sobriety testing is explained in detail in our earlier opinion. In brief, the officer first questions the subject to determine whether he or she has any medical condition or is taking any medication that might affect the results of the test. If not, the officer performs a preliminary test to determine whether the pupils of the subject's eyes are of equal size and whether the eyes “track” equally as an object is moved, at eye level, from side to side. If so, the HGN test itself is performed. The officer looks for three “clues,” assessing each eye separately. The three clues are lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of  nystagmus at an angle less than 45 degrees. One point is assigned for each clue that is present in either eye. Thus, the maximum score is six, which would indicate all three clues present in both eyes. A score of four or more is considered “failing” and indicative of alcohol impairment.

The Illinois Supremes then recounted all of the testimony presented at the Frye hearing (which you can read in the court's opinion) and set forth the trial court's five conclusions of law:

1. HGN testing satisfies the Frye standard in Illinois.

2. HGN testing is but one facet of field sobriety testing and is admissible as a factor to be considered by the trier-of-fact on the issue of alcohol or drug impairment.

3. A proper foundation must include that the witness has been adequately trained, has conducted testing and assessment in accordance with the training, and that he administered the particular test in accordance with his training and proper procedures.

4. [Testimony regarding] HGN testing results should be limited to the conclusion that a "failed" test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.

5. In conjunction with other evidence, HGN may be used as a part of the police officer's opinion that the subject [was] under the influence and impaired.

In upholding these conclusions, the Supreme Court of Illinois

agree[d] with the trial court that the relevant scientific fields that embrace the testing for and observation of HGN include medicine, ophthalmology, and optometry. Research and expert opinion in other scientific or medical fields, such as neurophysiology, might also be relevant.

According to the Illinois Supremes,

The trial court concluded that “both ophthalmology and optometry generally accept the principle that the HGN test may be an indicator of alcohol consumption.” The trial court stated, further, that the use of HGN test results at trial “should be limited to the conclusion that a ‘failed’ test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.”

We agree. Consumption of alcohol is a necessary precondition to impairment due to alcohol. Therefore, any evidence of alcohol consumption is relevant to the question of impairment....A failed HGN test is relevant to impairment in the same manner as the smell of alcohol on the subject's breath or the presence of empty or partially empty liquor containers in his car. Each of these facts is evidence of alcohol consumption and is properly admitted into evidence on the question of impairment.

We, therefore, adopt the trial court's finding that HGN testing is generally accepted in the relevant scientific fields and that evidence of HGN test results is admissible for the purpose of proving that a defendant may have consumed alcohol and may, as a result, be impaired.

So, why did the State lose despite these conclusions? Well, apparently, the arresting officer didn't perform the HGN test properly in McKown. According to the Supreme Court of Illinois, 

defense counsel was allowed to make an offer of proof during cross-examination of Master Sergeant Lebron. Lebron reviewed the transcript of Officer Klatt's trial testimony and stated that Klatt performed the test while defendant was seated; while the NHTSA manual requires that the subject be standing. Further, Klatt's testimony does not indicate that he questioned defendant about any eye problems, equal tracking, equal pupil size, or resting nystagmus. Lebron stated that he “would agree” with the statement that Klatt did not perform the test in accordance with NHTSA standards.

During its cross-examination of Dr. Citek, the defense again made an offer of proof regarding the manner in which Klatt conducted the HGN test in this case. Citek acknowledged that the officer's testimony did not state that he observed equal pupil size and equal tracking before he conducted the HGN test and that if the officer did skip these steps, the test results would not be reliable.

Page acknowledged that the HGN test must be performed according to NHTSA standards to be considered reliable as a field-sobriety test and that he has seen trained police officers administer the test incorrectly. He agreed that Klatt's trial testimony did not correctly describe the clues one observes when administering the HGN test.

Dr. Henson reviewed Klatt's testimony and stated based on that testimony, the test Klatt performed was not in compliance with NHTSA standards.

Based upon this and other corroborative evidence, the Supreme Court of Illinois found that the admission of testimony regarding the HGN test was reversible error and remanded for a new trial.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/02/hgn-ilpeople-v-mckown----ne2d------2010-wl-572082ill2010.html

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Comments

The drug and alcohol tests are most common these days to avoid the road mishaps happening. These tests helps them in driving safely. The drug and alcohol tests are a must to have a driver permit in florida

Posted by: teddybeaver | Feb 21, 2010 11:04:33 PM

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