APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
527 N.E.2d 163, 172 Ill. App. 3d 865, 122 Ill. Dec. 791 1988.IL.1224
Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. DUNN and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
Defendant, James Dakuras, was charged in the circuit court of Du Page County with the offenses of driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)), leaving the scene of an accident involving vehicle damage (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-402), driving while license revoked (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-303), and improper lane usage (Ill. Rev. Stat. 1987, ch. 95 1/2, par 11-709(a)). Prior to trial, defendant filed a motion in limine seeking to preclude admission of a horizontal gaze nystagmus test as evidence of his driving while under the influence of alcohol. Following the trial court's granting of defendant's motion in limine, the State filed this appeal pursuant to Supreme Court Rule 604(a)(1). 107 Ill. 2d R. 604(a)(1).
The issue presented in this appeal is whether the results of a horizontal gaze nystagmus test are admissible to prove a defendant's blood-alcohol concentration in a prosecution for driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)).
Defendant was arrested on March 4, 1987, and was subsequently charged with the four offenses set forth above. Although it is not entirely clear from the record, apparently the arresting police officer administered an HGN test to defendant sometime after the initial traffic stop. Defendant filed a motion in limine prior to trial seeking to suppress the results of the HGN test.
At the hearing on defendant's motion in limine, the State offered the testimony of Dr. Gary Lesher, an instructor of pharmacology at the Illinois College of Optometry. According to Dr. Lesher, nystagmus is the term used for an involuntary movement of the eye, either vertically, horizontally or rotary, which can occur when an individual's eyes move from a straight ahead gaze to a lateral gaze. Dr. Lesher further testified that although nystagmus can be caused by other factors, several studies, including his own, have demonstrated a correlation between alcohol consumption and nystagmus. He stated that, absent any other nystagmus causing factors, an individual who exhibits nystagmus at a point where his lateral gaze is at an angle of 45 degrees or less is highly likely to have a blood-alcohol concentration of .10 or greater.
He further explained that the 45-degree angle of the gaze is determined by observing the pupil as the eye follows an object, such as a pen, which is held approximately 15 inches from the eye and moved laterally. The eye reaches a 45-degree angle at the point where the pupil is midway between the nose and the ear. According to Dr. Lesher, if there is a perceptible nystagmus at an angle of 45 degrees or less, it would be highly likely that the subject would have a blood-alcohol concentration of at least .10. There were no other witnesses who testified at the hearing.
Prior to ruling on defendant's motion, the trial court asked the assistant State's Attorney what the nature and extent of the testimony of the police officer who administered the HGN test would be. The assistant State's Attorney responded that, "[the] officer will testify that he observed an angle of onset of less than 45 degrees, and based upon the testimony of the expert witness, it is our position that that is indicative of a blood alcohol concentration of .10 or greater. And Officer Talbot, I believe, will testify that when he detected that angle of onset at least 45 degrees, he interpreted that as meaning that the Defendant's blood alcohol concentration was .10 or greater." Further, in argument, the assistant State's Attorney took the position that the court should find "that the HGN test is a reliable and valid test for determining whether or not the blood alcohol concentration of an individual is at .10 or greater."
The trial court found that, based on the evidence presented, the HGN test was not generally accepted by the scientific community in the particular field in which it belongs and granted defendant's motion in limine to preclude testimony of the correlation between defendant's performance of the HGN test and his blood-alcohol concentration.
The State contends, on appeal, that the trial court's ruling was erroneous. It cites two cases from other jurisdictions, State v. Nagel (1986), 30 Ohio App. 3d 80, 506 N.E.2d 285, and State v. Superior Court (1986), 149 Ariz. 269, 718 P.2d 171, where a limited use of the HGN test results was permitted. No Illinois case has directly determined the admissibility of HGN test results. See People v. Seymoure (1987), 158 Ill. App. 3d 1038, 511 N.E.2d 986 (defendant's failure to object to admissibility of HGN test waived issue); People v. Vega (1986), 145 Ill. App. 3d 996, 496 N.E.2d 501 (insufficient evidence in circuit court to determine the validity and admissibility of HGN test).
Defendant responds first that HGN test results should not be admissible because they fail to meet the reliability standard for scientific testing set forth in Frye v. United States (D.C. Cir. 1923), 293 F. 1013, and adopted by our supreme court in People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070. Alternatively, defendant argues that the State offered the HGN test results as evidence of defendant's blood-alcohol concentration and, as such, the HGN test results ...