{ "id": 351021, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES D. KIRK, Defendant-Appellant", "name_abbreviation": "People v. Kirk", "decision_date": "1997-06-23", "docket_number": "No. 4\u201495\u20140574", "first_page": "326", "last_page": "337", "citations": [ { "type": "official", "cite": "289 Ill. App. 3d 326" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "1997 WL 200304", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "680 A.2d 349", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7860243 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/a2d/680/0349-01" ] }, { "cite": "1997 WL 158121", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "115 F.R.D. 92", "category": "reporters:specialty", "reporter": "F.R.D.", "year": 1987, "pin_cites": [ { "page": "97" } ], "opinion_index": 0 }, { "cite": "787 S.W.2d 544", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10002064 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/sw2d/787/0544-01" ] }, { "cite": "234 Mont. 222", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5308472 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/mont/234/0222-01" ] }, { "cite": "561 So. 2d 883", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7534434 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/so2d/561/0883-01" ] }, { "cite": "119 Idaho 878", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4413975 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "881", "parenthetical": "finding that HGN evidence satisfies Frye standard because it had not been provided with authority that \"refutes the reasoned decision of [Blake]\"" }, { "page": "491", "parenthetical": "finding that HGN evidence satisfies Frye standard because it had not been provided with authority that \"refutes the reasoned decision of [Blake]\"" } ], "opinion_index": 0, "case_paths": [ "/idaho/119/0878-01" ] }, { "cite": "451 N.W.2d 154", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10593052 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nw2d/451/0154-01" ] }, { "cite": "506 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "30 Ohio App. 3d 80", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6706746 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ohio-app-3d/30/0080-01" ] }, { "cite": "554 N.E.2d 1330", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "51 Ohio St. 3d 123", "category": "reporters:state", "reporter": "Ohio St. 3d", "case_ids": [ 1424158 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ohio-st-3d/51/0123-01" ] }, { "cite": "744 S.W.2d 640", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9978536 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/sw2d/744/0640-01" ] }, { "cite": "643 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "870", "parenthetical": "\"Generally, field-sobriety tests are admissible not only in proceedings to determine whether probable cause existed, but also in criminal proceedings to prove intoxication. (See People v. Buening (1992), 229 Ill. App. 3d 538, 592 N.E.2d 1222 ([HGN] test).\"" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 174", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381909 ], "year": 1994, "pin_cites": [ { "page": "181", "parenthetical": "\"Generally, field-sobriety tests are admissible not only in proceedings to determine whether probable cause existed, but also in criminal proceedings to prove intoxication. (See People v. Buening (1992), 229 Ill. App. 3d 538, 592 N.E.2d 1222 ([HGN] test).\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0174-01" ] }, { "cite": "638 N.E.2d 264", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872545 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "245-46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0232-01" ] }, { "cite": "538 N.E.2d 1268", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 1062", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620861 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/1062-01" ] }, { "cite": "496 N.E.2d 501", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "504" }, { "page": "505" } ], "opinion_index": 0 }, { "cite": "145 Ill. App. 3d 996", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536570 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "1000" }, { "page": "1001" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0996-01" ] }, { "cite": "640 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887213 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0336-01" ] }, { "cite": "430 N.E.2d 1070", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "88 Ill. 2d 225", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083586 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0225-01" ] }, { "cite": "149 Ariz. 269", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1480115 ], "weight": 20, "year": 1986, "pin_cites": [ { "page": "271", "parenthetical": "en banc" }, { "page": "173", "parenthetical": "en banc" }, { "page": "271" }, { "page": "173" }, { "page": "272" }, { "page": "174" }, { "page": "272" }, { "page": "174" }, { "page": "272" }, { "page": "174" }, { "page": "272-73" }, { "page": "174-75" }, { "page": "276" }, { "page": "178" }, { "page": "277" }, { "page": "179" }, { "page": "278" }, { "page": "180" }, { "page": "279" }, { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ariz/149/0269-01" ] }, { "cite": "106 Md. App. 145", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 4428783 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "180-81" }, { "page": "77" }, { "page": "158-60" }, { "page": "66-67", "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/md-app/106/0145-01" ] }, { "cite": "592 N.E.2d 1222", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1992, "pin_cites": [ { "page": "1223" }, { "page": "1223" }, { "page": "1223" }, { "page": "1225" }, { "page": "1227-28" } ], "opinion_index": 0 }, { "cite": "229 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5214922 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "539" }, { "page": "539" }, { "page": "539-40" }, { "page": "541" }, { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0538-01" ] }, { "cite": "293 F. 1013", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 11720199 ], "weight": 2, "year": 1923, "opinion_index": 0, "case_paths": [ "/f/293/1013-01" ] }, { "cite": "672 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1327" } ], "opinion_index": 1 }, { "cite": "284 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260387 ], "year": 1996, "pin_cites": [ { "page": "703" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/284/0695-01" ] }, { "cite": "574 N.E.2d 1345", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1357" } ], "opinion_index": 1 }, { "cite": "215 Ill. App. 3d 413", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5293512 ], "year": 1991, "pin_cites": [ { "page": "432" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/215/0413-01" ] }, { "cite": "449 N.E.2d 812", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "70 Ill. Dec. 465", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1983, "opinion_index": 1 }, { "cite": "96 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3114753 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/ill-2d/96/0159-01" ] }, { "cite": "380 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "20 Ill. Dec. 681", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1978, "opinion_index": 1 }, { "cite": "63 Ill. App. 3d 874", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3338991 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/ill-app-3d/63/0874-01" ] }, { "cite": "195 N.E.2d 149", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 1 }, { "cite": "29 Ill. 2d 576", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1964, "opinion_index": 1 }, { "cite": "355 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "64 Ill. 2d 153", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429312 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/ill-2d/64/0153-01" ] }, { "cite": "680 A.2d 349", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7860243 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "360" }, { "page": "360" } ], "opinion_index": 1, "case_paths": [ "/a2d/680/0349-01" ] }, { "cite": "640 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "27" } ], "opinion_index": 1 }, { "cite": "266 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887213 ], "year": 1994, "pin_cites": [ { "page": "339" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/266/0336-01" ] }, { "cite": "592 N.E.2d 1222", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1227-28" } ], "opinion_index": 1 }, { "cite": "229 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5214922 ], "year": 1992, "pin_cites": [ { "page": "546" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/229/0538-01" ] } ], "analysis": { "cardinality": 1281, "char_count": 28072, "ocr_confidence": 0.774, "pagerank": { "raw": 1.8229057324129392e-07, "percentile": 0.7194653047339825 }, "sha256": "42f1b991f076bc71261f3f990ea00170d2b3d1955e0a8b21e2567f9f61edd708", "simhash": "1:9234a3ee5327d4e1", "word_count": 4622 }, "last_updated": "2023-07-14T21:29:08.370768+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES D. KIRK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nDefendant James D. Kirk was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11\u2014501(a)(2) (West 1994)) and improper lane usage for driving the wrong direction on a one-way road (625 ILCS 5/11\u2014708 (West 1994)). Following a jury trial, defendant was convicted on both counts. Defendant appeals, arguing that it was error for the trial court to allow certain scientific testimony without conducting a Frye hearing. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We agree a Frye hearing should have been conducted but hold that any error was harmless.\nThe evidence established that defendant watched the second half of the Super Bowl at his son\u2019s Bloomington home. Defendant arrived at the house during halftime and did not appear to be impaired. He remained at the home for a couple of hours, through the second half. During this time, defendant and his son drank some beer from a 12-pack and ate some snacks. Defendant testified he consumed three or four beers \"at the most.\u201d Defendant\u2019s daughter-in-law, Joyce Kirk, testified there was still beer left in the 12-pack when defendant left her home, but she did not know how may beers actually remained. She did not think defendant was impaired when he left and testified his walk and speech were no different than usual. Joyce also stated that defendant walks with a limp because he has bad knees.\nDefendant, who does not live in Bloomington, testified that when visiting his son he will generally only travel the Bloomington roads he was driving at the time of his arrest. Defendant testified that after leaving his son\u2019s house, he decided to visit his other son. He then decided it was too late to do so and turned on Oakland Avenue to head east. As he approached Lee Street and saw the traffic lights, defendant realized he was driving the wrong way on a one-way street. He made a right turn when he got to MacArthur and was stopped shortly thereafter.\nOfficer Darrin Woodin saw defendant driving the wrong way on Oakland Avenue. He watched defendant drive 300 to 400 feet before he turned off Oakland Avenue and onto Madison Street. Woodin did not see defendant violate any other traffic laws prior to the stop. Woodin smelled alcohol as he approached defendant\u2019s vehicle. Woodin believed the smell of alcohol emanated from defendant and not defendant\u2019s car because the smell became stronger when defendant spoke. Woodin described defendant\u2019s speech as being sometimes clear and. sometimes \"drift[ing] off into a mumble that was almost unintelligible.\u201d Woodin asked defendant to take the field-sobriety tests.\nWoodin first administered the horizontal gaze nystagmus (HGN) test. This test involves testing a suspect\u2019s eye movement in an effort to determine intoxication. Based upon the HGN test, Woodin believed defendant to be intoxicated. Woodin then asked defendant to \"recite the alphabet from E through N.\u201d According to Woodin, defendant skipped the letters \"H\u201d and \"I\u201d and continued through the letter \"Z.\u201d Woodin said defendant drifted \"in and out of the slurred speech.\u201d\nWoodin demonstrated, then asked defendant to perform, the finger-to-nose test. Defendant reportedly refused to take the test, stating that it was \"impossible.\u201d Woodin did not ask defendant to perform either the walk-and-turn test or the one-leg-stand test. Woodin explained that, in light of defendant\u2019s bad knees, he did not think the tests would be fair. Based upon the tests and his observations of defendant\u2019s movements, Woodin was of the opinion that defendant was impaired. Woodin also testified that, in response to questions, defendant said he had been at a bar and that he had consumed a few drinks. Woodin\u2019s police report made no mention of defendant\u2019s statement that he had been at a bar. Defendant denied stating that he had been at a bar. Woodin noticed three to five empty beer cans in the backseat of defendant\u2019s car. Defendant testified he had picked these cans up for recycling.\nDefendant was arrested for DUI. After being read the motorist warning, defendant refused to take the breathalyzer. Woodin testified defendant said he would not pass the test anyway. At trial, defendant explained that he did not trust the machine, that he had heard several people talk about the test and he did not believe anyone ever passed the test. Defendant was found guilty and appeals.\nDefendant raises only one argument upon appeal, that it was improper for the trial court to allow Woodin\u2019s testimony concerning the HGN test. Defendant argues the HGN test is based upon scientific principles and that an Illinois court has yet to properly determine whether the HGN test is generally accepted within the scientific community.\nNystagmus, a physiological phenomenon, is a term used to describe an involuntary jerking of the eyeball. People v. Buening, 229 Ill. App. 3d 538, 539, 592 N.E.2d 1222, 1223 (1992); see also Webster\u2019s Tenth New Collegiate Dictionary 800 (1996) (\"a rapid involuntary oscillation of the eyeballs\u201d). Nystagmus can be congenital or it may be caused by \" 'a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze, disorders of the vestibular apparatus and brainstem and cerebellar dysfunction.\u2019 \u201d (Emphasis omitted.) Buening, 229 Ill. App. 3d at 539, 592 N.E.2d at 1223, quoting The Merck Manual of Diagnosis and Therapy 1980 (14th ed. 1982); see also Schultz v. State, 106 Md. App. 145, 180-81, 664 A.2d 60, 77 (1995) Qisting 38 possible causes of nystagmus in addition to alcohol consumption). The HGN test, as routinely performed by law enforcement officers, consists of:\n\" 'the driver [being] asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver\u2019s eye level. As the officer moves the object gradually out of the driver\u2019s field of vision toward his ear, he watches the driver\u2019s eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation[,] and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver\u2019s blood[-]alcohol content (BAG) exceeds the legal limit of [0.10].\u2019 \u201d Buening, 229 Ill. App. 3d at 539-40, 592 N.E.2d at 1223, quoting State v. Superior Court, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986) (en banc) (hereinafter Blake).\nIn Buening, the defendant filed a motion in limine seeking to exclude the results of his HGN test. The trial court granted the motion, and the State, after filing a certificate of impairment, appealed. The Buening court reviewed Illinois case law concerning the admissibility of HGN test results as well as the case law of other states. Relying upon Blake as \"one of the more extensively researched and well-reasoned decisions on the subject\u201d (Buening, 229 Ill. App. 3d at 541, 592 N.E.2d at 1225), the court concluded that HGN testing meets the Frye standard (see Frye, 293 F. 1013; People v. Baynes, 88 Ill. 2d 225, 430 N.E.2d 1070 (1981)) and that \"HGN test results are admissible, as is any other evidence of a defendant\u2019s behavior, to prove that the defendant is under the influence of alcohol, provided a proper foundation has been laid\u201d (Buening, 229 Ill. App. 3d at 546, 592 N.E.2d at 1227-28). Buening, a fifth district opinion, has been followed by the third district in People v. Wiebler, 266 Ill. App. 3d 336, 640 N.E.2d 24 (1994).\nThis court addressed HGN testing in People v. Vega, 145 Ill. App. 3d 996, 496 N.E.2d 501 (1986), a DUI case in which the trial court admitted evidence that the defendant had failed the test. The entire foundation for the test\u2019s admission was the testimony of the police officer explaining the procedure of the test. There was no testimony about either the officer\u2019s training in the administration of the test or the scientific validity of the test. This court noted that when evidence \"beyond the general knowledge of the average individual is sought to be introduced, a proper foundation by way of expert testimony is required. This becomes especially true of technological evidence. It is a natural inclination of jurors to regard such evidence as extremely trustworthy.\u201d Vega, 145 Ill. App. 3d at 1000, 496 N.E.2d at 504. Perhaps recognizing that a Frye hearing should have been conducted in the trial court, both parties in Vega submitted materials to this court in support of their position as to the validity (or invalidity) of the HGN test. Those materials had not been presented to the trial court. Determining that the foundation presented at trial was insufficient to admit the HGN test evidence, we declined to follow Blake and declined the opportunity to rule upon the validity and admissibility of the HGN test: \"That decision must await another day and another case. Exhibits or attachments to appellate briefs, not seen by the trial court, are improper.\u201d Vega, 145 Ill. App. 3d at 1001, 496 N.E.2d at 505. When read as a whole, Vega stands for the proposition that the HGN test evidence should not have been admitted in the absence of a finding that it met the Frye standard. Vega was followed by the second district in People v. Smith, 182 Ill. App. 3d 1062, 538 N.E.2d 1268 (1989).\nIn People v. Hood, 265 Ill. App. 3d 232, 638 N.E.2d 264 (1994), this court was faced with the question of whether the results of an HGN test were admissible in an implied-consent proceeding. This court first noted that neither Vega nor Buening dealt with the issue then before the court, statutory summary suspension of drivers\u2019 licenses. This court then said:\n\"As the fifth district determined the HGN test was sufficiently reliable to meet the Frye standard for admissibility in criminal proceedings, we are persuaded it is sufficiently reliable to be admitted in implied-consent proceedings; thus, where evidence involving the HGN test is sought to be admitted in implied-consent proceedings, the State need not call an expert witness to attest to its reliability. Accordingly, the circuit court properly overruled Hood\u2019s objection based on lack of scientific reliability.\u201d Hood, 265 Ill. App. 3d at 245-46, 638 N.E.2d at 274.\nSee also People v. Rose, 268 Ill. App. 3d 174, 181, 643 N.E.2d 865, 870 (1994) (\"Generally, field-sobriety tests are admissible not only in proceedings to determine whether probable cause existed, but also in criminal proceedings to prove intoxication. (See People v. Buening (1992), 229 Ill. App. 3d 538, 592 N.E.2d 1222 ([HGN] test).\u201d) This case presents the specific issue, not involved in Hood and Rose, of whether it is necessary to conduct a Frye hearing prior to the admission of the result of a HGN test in a criminal trial for DUI. We conclude that a Frye hearing is necessary.\nThe Buening court relied primarily upon the Blake decision in reaching its conclusion. In Blake, the defendant made pretrial motions (1) to dismiss the prosecution for lack of probable cause to arrest, and (2) to preclude the admission of HGN evidence at her upcoming DUI trial. The trial court conducted an evidentiary hearing, at which the prosecution presented four witnesses. The first was Dr. Marcelline Burns, a research psychologist who studied the effect of alcohol on behavior. Burns testified the HGN test, when used in conjunction with walk-and-turn and one-leg-stand tests, resulted in 83% accuracy in determining BAG above and below 0.10. Blake, 149 Ariz. at 271, 718 P.2d at 173. Burns also testified \"the HGN test had been accepted as valid by the highway safety field, including the [National Highway Traffic Safety Administration (NHTSA)], Finnish researchers, state agencies such as the California Highway Patrol, Arizona Highway Patrol, Washington State Police, and numerous city agencies.\u201d Blake, 149 Ariz. at 272, 718 P.2d at 174. The other three witnesses were police officers. Their testimony suggested that the HGN test is between 80% and 90% accurate and that it is particularly \"useful in detecting violations where a driver with [a] BAG over 0.10 is able to pull himself together sufficiently to pass the traditional field[-]sobriety tests and thus avoid arrest and subsequent chemical testing.\u201d Blake, 149 Ariz. at 272, 718 P.2d at 174. The trial court concluded that the HGN test represented a new scientific principle subject to the Frye standard of admissibility, that the test did not satisfy Frye, and therefore could not form the basis of probable cause. Blake, 149 Ariz. at 272, 718 P.2d at 174. The appellate court reversed, noting that the Frye standard applied only to the admissibility of evidence at trial, not to probable cause for arrest, and that the HGN test was sufficiently reliable to form the basis of probable cause. Alternately, the appellate court found the HGN test did satisfy the Frye standard. Blake, 149 Ariz. at 272-73, 718 P.2d at 174-75.\nThe Arizona Supreme Court noted the \"HGN test is a different type of test from balancing on one leg or walking a straight line because it rests almost entirely upon an assertion of scientific legitimacy rather than a basis of common knowledge.\u201d Blake, 149 Ariz. at 276, 718 P.2d at 178. The court concluded the Frye standard applied. Blake, 149 Ariz. at 277, 718 P.2d at 179. The court then determined that, before the HGN test could be found to satisfy the Frye rule, it would have to be shown that the HGN test was generally accepted in four different disciplines: \"behavioral psychology, highway safety and, to a lesser extent, neurology and criminalistics.\u201d Blake, 149 Ariz. at 278, 718 P.2d at 180. (Unlike other tests employed in court, such as deoxyribonucleic acid (DNA), it appears that HGN is not used by anyone except police officers.) Based upon its own research as well as articles submitted by the prosecution, the Arizona Supreme Court concluded the HGN test satisfied the Frye standard. Accordingly, the court held that, \"with [the] proper foundation as to the techniques used and the officer\u2019s ability to use it [citation], testimony of defendant\u2019s nystagmus is admissible on the issue of a defendant\u2019s blood[-]alcohol level as would be other field[-]sobriety test results.\u201d Blake, 149 Ariz. at 279, 718 P.2d at 181.\nThere are several ways a proponent of evidence subject to Frye can prove the \"general acceptance\u201d of the proffered evidence. The proponent may use scientific publications, prior judicial decisions, practical applications, as well as the testimony of scientists as to the attitudes of their fellow scientists. See 1 J. Strong, McCormick on Evidence \u00a7 203, at 870 (4th ed. 1992) (and cases cited therein) (hereinafter McCormick). At least a couple of courts have taken judicial notice of general acceptance where the published indications of general acceptance are unequivocal and undisputed. McCormick \u00a7 203, at 870 n.22. Blake appears to rely upon this method, at least to some extent. While it may be proper for a trial court to take judicial notice of numerous articles, we believe it is improper for this court to decide the validity or acceptance of a scientific test on such a basis.\nWe agree with Buening and Blake in at least one respect: HGN evidence is scientific evidence that must meet the Frye standard before it is admissible. This seems to be the majority view. See Schultz, 106 Md. App. at 158-60, 664 A.2d at 66-67 (and cases cited therein). In the absence of a Frye hearing in the instant case, however, we decline to follow the Buening conclusion that HGN evidence is admissible. The Buening court relied heavily upon the opinions of other courts, including Blake. Perhaps the Buening court relied upon other evidence, but we cannot tell whether it did so from the opinion.\nThe other cases relied upon in Buening in turn relied upon Blake. Four of the cases were from courts that did not deem Frye applicable to the HGN test. See Howard v. State, 744 S.W.2d 640 (Tex. Crim. App. 1987); State v. Bresson, 51 Ohio St. 3d 123, 554 N.E.2d 1330 (1990); State v. Nagel, 30 Ohio App. 3d 80, 506 N.E.2d 285 (1986); State v. Murphy, 451 N.W.2d 154 (Iowa 1990). Of the remaining cases, none of the appellate courts had the benefit of a Frye hearing. Rather, those courts concluded that the Frye standard had been met due to the Blake court\u2019s conclusion. See State v. Garrett, 119 Idaho 878, 881, 811 P.2d 488, 491 (1991) (finding that HGN evidence satisfies Frye standard because it had not been provided with authority that \"refutes the reasoned decision of [Blake]\u201d); State v. Armstrong, 561 So. 2d 883 (La. App. 1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988).\nReliance upon other courts\u2019 opinions can be problematic: \"Unless the question of general acceptance has been thoroughly and thoughtfully litigated in the previous cases, *** reliance on judicial practice is a hollow ritual.\u201d McCormick \u00a7 203, at 870 n.20. For example, McCormick cites Glover v. State, 787 S.W.2d 544 (Tex. Crim. App. 1990), as a case where the court held that DNA fingerprinting enjoys general acceptance following a hearing in which defendant produced no expert testimony. In reaching its decision, the Glover court relied upon other cases in which no defense experts were available. McCormick \u00a7 203, at 870 n.20. \" '[Jjudicial notice could become a yellow brick road for judicial acceptance of bogus or at least unvalidated scientific theories or techniques.\u2019 \u201d McCormick \u00a7 203, at 870 n.20, quoting J. Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 115 F.R.D. 92, 97 (1987). The State\u2019s evidence in Blake consisted of four witnesses: one research psychologist and three police officers. The defendant did not present any evidence. The Blake court relied upon its own research of relevant articles. While the Blake defendant \"won\u201d the Frye hearing at the trial court level, that decision was reversed by the appellate court. Blake is questionable authority for the proposition that the HGN test meets the Frye standard in Illinois courts.\nThe expert retained by the prosecution in Blake, Dr. Burns, was the individual who conducted the study that led to the NHTSA\u2019s adoption of the HGN test. Police departments, in turn, have adopted the NHTSA\u2019s recommendations. In Blake, Dr. Burns supported the proposition that the HGN test is accepted and reliable, in part, by relying upon the NHTSA\u2019s manual and the fact that the test is used by different police departments. By doing so, however, she in essence referred back to her own conclusions, magnifying the opportunity for error. We do not say that Dr. Burns\u2019 conclusions on the subject are flawed, only that the issue has not been fully and thoroughly litigated. The proper place for this litigation is in the trial court, and it was error to admit the HGN test evidence without a proper Frye hearing.\nThe concurrence cites a recent decision, Zimmerman v. State, No. 130 1996 (Del. April 2, 1997) (1997 WL 158121). In Zimmerman, the Delaware Supreme Court reversed a decision admitting HGN evidence because the trial court had not conducted Delaware\u2019s equivalent of a Frye hearing. That reversal is consistent with our holding, that because of the conflict in the decisions the trial court should not simply choose a decision of some other jurisdiction to follow, but should actually review the scientific testimony on both sides in a Frye hearing. Zimmerman noted that State v. Ruthardt, 680 A.2d 349 (Del. Super. 1996), decided after the case sub judice, conducted a Frye hearing, and Zimmerman agreed with Ruthardt but the subsequent decision did not justify affirmance in the case before it. Zimmerman, slip op. at 3, 4 n.18. Ruthardt recognized there is some opposition to the HGN test both within the scientific community and among the courts, there are several scientific articles published subsequent to the Blake case that insist that the HGN test has not gained general acceptance within the scientific community, and several articles maintain that the research procedures in the NHTSA studies are suspect. Ruthardt, 680 A.2d at 359. The dissent cites State v. Taylor, No. CUM\u201495\u2014706 (Me. April 18, 1997) (1997 WL 200304), but that decision also relies heavily on the Blake case and the questioned NHTSA studies.\nThe State argues that any error was harmless. We agree. While defendant may have had valid objections to both the walk-and-turn and one-leg-stand tests, Woodin did not require defendant to take these tests. Defendant has offered no valid explanation for his failure to take the finger-to-nose test. He simply stated that the test was impossible, even after Woodin demonstrated the test. Defendant\u2019s only explanation for his refusal to submit to the breath test was because he had heard that no one ever passed it. Defendant\u2019s explanation that hay fever and dentures caused his slurred speech were self-serving at best. Defendant failed the alphabet test. While we believe the admission of the HGN test was error, we believe it was harmless error in light of the other evidence of defendant\u2019s guilt.\nFor the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMcCullough, j., concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "PRESIDING JUSTICE STEIGMANN,\nspecially concurring:\nAlthough I concur in the majority\u2019s decision to affirm defendant\u2019s conviction, I disagree with the majority\u2019s conclusion that the trial court erred by admitting the HGN test.\nTo reach that conclusion, the majority had to reject the fifth district\u2019s decision in Buening that \"HGN test results are admissible, as is any other evidence of a defendant\u2019s behavior, to prove that the defendant is under the influence of alcohol, provided a proper foundation had been laid.\u201d Buening, 229 Ill. App. 3d at 546, 592 N.E.2d at 1227-28. I disagree with the majority\u2019s rejection of Buening because, in my opinion, it is a thoughtful, well-reasoned decision. Further, although the majority concedes that the third district has also decided to follow Buening (see Wiebler, 266 Ill. App. 3d at 339, 640 N.E.2d at 27), the majority apparently finds Wiebler insufficiently persuasive as well.\nAn important reason for the majority\u2019s rejection of Buening (and Blake, which Buening cited as persuasive) appears to be that those courts took judicial notice of various published articles in reaching their conclusions. The majority holds as follows: \"While it may be proper for a trial court to take judicial notice of numerous articles, we believe it is improper for this court to decide the validity or acceptance of a scientific test on such a basis.\u201d 289 Ill. App. 3d at 332. The majority cites no authority to support this assertion, and I believe none exists.\n\"Judicial notice, adjudicative and legislative, may also be taken by any court of appellate jurisdiction even if the taking of judicial notice was refused by the trial court or not requested below. 735 ILCS 5/8\u20141002; May Department Stores v. Teamsters Union Local #743, 64 Ill. 2d 153, 355 N.E.2d 7 (1976); In re Ersch\u2019s Estate, 29 Ill. 2d 576, 195 N.E.2d 149 (1964); Lubershane v. Village of Glencoe, 63 Ill. App. 3d 874, 20 Ill. Dec. 681, 380 N.E.2d 890 (1978). However, an appellate court will not take judicial notice of evidentiary material not presented below that is critical to a proper determination of the issues between the parties. Vulcan Materials Co. v. Bee Constr., 96 Ill. 2d 159, 70 Ill. Dec. 465, 449 N.E.2d 812 (1983).\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 201.1, at 53 (6th ed. 1994).\nThe exception discussed in the last sentence does not apply to resolving the validity of HGN testing under Frye.\nThis court should accept the statement of Buening that trial courts need not conduct future Frye hearings regarding the admissibility of HGN tests. On two recent occasions, this court has similarly concluded that Frye hearings are not necessary regarding scientific subjects \u2014 namely, DNA testing in general and certain methodologies of that testing in particular. In People v. Lipscomb, 215 Ill. App. 3d 413, 432, 574 N.E.2d 1345, 1357 (1991), this court held that DNA identification procedures are \"generally accepted within the particular scientific fields involved\u201d and are admissible. In People v. Pope, 284 Ill. App. 3d 695, 703, 672 N.E.2d 1321, 1327 (1996), this court held that the polymerase chain reaction based method of DNA typing was \"now generally accepted in the relevant scientific communities involved, and trial courts need not conduct future Frye hearings on this issue.\u201d Although it is true that we had more extensive trial court records to review in both Lipscomb and Pope than did the fifth district in Buening, I nonetheless am satisfied that the decision reached in Buening was correct.\nThe majority\u2019s decision will have serious consequences. Prosecutors in the medium-sized counties of this state file hundreds of DUI charges annually, and dozens of those ultimately go to trial. Because of this volume, and because these cases almost always constitute misdemeanors, precise dates for trial \u2014 often necessary to obtain expert witnesses to come to court to testify \u2014 are difficult to obtain. These logistical concerns, coupled with the expense of providing expert testimony for misdemeanor cases, will combine to force prosecutors to forego the use of HGN tests, thus thwarting the truth-seeking purposes of trials. And all this for reasons that other courts nationwide have rejected.\nOne of the most recent courts to address this issue is the Supreme Court of Delaware, In Zimmerman (No. 130 1996, slip op. at 3 n.11), that court cited approvingly an earlier decision of the Delaware Superior Court in Ruthardt, to the effect that, \"[w]hen establishing a foundation for HGN tests, future cases are not required to establish that the HGN test is reasonably relied upon by experts.\u201d The Ruthardt court, in concluding that experts view HGN evidence as reasonably reliable, explained, in part, as follows:\n\"The bulk of the scientific research indicates that the potential error rate of a properly administered HGN test is lower than all field[-]sobriety tests that are routinely admitted into evidence. Moreover, most of the studies, scientific articles, state court decisions!,] and other literature on the subject that this Court has reviewed establish that the test is a reliable tool if properly administered. In fact, recent cases on HGN evidence reveal that the law has progressed beyond the issue of admissibility towards an emphasis on defining foundation requirements and the qualification[s] of those who administer the test.\u201d Ruthardt, 680 A.2d at 360.\nIn Taylor (No. CUM\u201495\u2014706, slip op. at 4), the Supreme Court of Maine also addressed the scientific reliability of HGN tests and wrote the following:\n\"The scientific studies, law review articles, and other literature on the subject of HGN testing, as well as the case law, demonstrate that the HGN test is reliable if an officer properly administers it. We are persuaded by these authorities and conclude that the results of the HGN test should be admissible if a proper foundation is laid for their introduction in evidence. A proper foundation shall consist of evidence that the officer or administrator of the HGN test is trained in the procedure and the test was properly administered.\u201d\nLike the Supreme Courts of Delaware and Maine, we too should be \"progress[ing] beyond the issue of admissibility\u201d (Ruthardt, 680 A.2d at 360) and defining foundation requirements. The majority\u2019s decision constitutes a step backward.", "type": "concurrence", "author": "PRESIDING JUSTICE STEIGMANN," } ], "attorneys": [ "Daniel D. Yuhas and Elizabeth D. Caddick, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Charles G. Reynard, State\u2019s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, and James Majors, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES D. KIRK, Defendant-Appellant.\nFourth District\nNo. 4\u201495\u20140574\nOpinion filed June 23, 1997.\nDaniel D. Yuhas and Elizabeth D. Caddick, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nCharles G. Reynard, State\u2019s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, and James Majors, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0326-01", "first_page_order": 344, "last_page_order": 355 }