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June 23, 1997


Appeal from Circuit Court of McLean County. No. 951668. Honorable Donald D. Bernardi, Judge Presiding.

Honorable Robert W. Cook, J., Honorable John T. McCullough, J. - Concur, Honorable Robert J. Steigmann, P.j. - Special Concurrence. Justice Cook delivered the opinion of the court. McCULLOUGH, J., concurs. Steigmann, P.j., specially concurs.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Defendant James D. Kirk was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 1994)) and improper lane usage for driving the wrong direction on a one-way road (625 ILCS 5/11-708 (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, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923). We agree a Frye hearing should have been conducted but hold that any error was harmless.

The evidence established that defendant watched the second half of the Super Bowl at his son's 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." Defendant's 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.

Defendant, 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's 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 McArthur and was stopped shortly thereafter.

Officer 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's vehicle. Woodin believed the smell of alcohol emanated from defendant and not defendant's car because the smell became stronger when defendant spoke. Woodin described defendant's speech as being sometimes clear and sometimes "drifting off into a mumble that was almost unintelligible." Woodin asked defendant to take the field-sobriety tests.

Woodin first administered the horizontal gaze nystagmus (HGN) test. This test involves testing a suspect's 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." According to Woodin, defendant skipped the letters "H" and "I" and continued through the letter "Z." Woodin said defendant drifted "in and out of the slurred speech."

Woodin demonstrated, then asked defendant to perform, the finger-to-nose test. Defendant reportedly refused to take the test, stating that it was "impossible." 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's bad knees, he did not think the tests would be fair. Based upon the tests and his observations of defendant's 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's police report made no mention of defendant's 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's car. Defendant testified he had picked these cans up for recycling.

Defendant 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.

Defendant raises only one argument upon appeal, that it was improper for the trial court to allow Woodin's 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.

Nystagmus, 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, 170 Ill. Dec. 542 (1992); see also Webster's Tenth New Collegiate Dictionary 800 (1996) ("a rapid involuntary oscillation of the eyeballs"). 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. '" (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) (listing 38 possible causes of nystagmus in addition to alcohol consumption). The HGN test, as routinely performed by law enforcement officers, consists of:

"'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's eye level. As the officer moves the object gradually out of the driver's field of vision toward his ear, he watches the driver's 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's blood[-]alcohol content (BAC) exceeds the legal limit of [0.10].'" 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).

In 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" ( 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, 54 App. D.C. 46, 293 F. 1013; People v. Baynes, 88 Ill. 2d 225, 430 N.E.2d 1070, 58 Ill. Dec. 819 (1981)) and that "HGN test results are admissible, as is any other evidence of a defendant's behavior, to prove that the defendant is under the influence of alcohol, provided a proper foundation has been laid" ...

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