HGN test in Illinois

2023In People v. McKown, 226 Ill. 2d 245, 254 , 875 N.E.2d 1029, 1034 (2007) (McKown I), the court considered whether it was error to admit HGN test results as scientific evidence without holding a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.

2023In People v. McKown, 226 Ill. 2d 245, 254 , 875 N.E.2d 1029, 1034 (2007) (McKown I), the court considered whether it was error to admit HGN test results as scientific evidence without holding a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.

2026Accordingly, there was no error in the trial court’s consideration of the walk-and- turn and one-leg stand tests. ¶ 58 As to the HGN test, we recognize that it requires a more specific foundation than other field sobriety tests. “[T]o be a reliable indicator of alcohol consumption, HGN field testing must be performed in accordance with the NHTSA protocol.” People v. McKown, 236 Ill. 2d 278 , 298 - 28 - (2010).

2026Accordingly, there was no error in the trial court’s consideration of the walk-and- turn and one-leg stand tests. ¶ 58 As to the HGN test, we recognize that it requires a more specific foundation than other field sobriety tests. “[T]o be a reliable indicator of alcohol consumption, HGN field testing must be performed in accordance with the NHTSA protocol.” People v. McKown, 236 Ill. 2d 278 , 298 - 28 - (2010).

2023In People v. McKown, 226 Ill. 2d 245, 254 , 875 N.E.2d 1029, 1034 (2007) (McKown I), the court considered whether it was error to admit HGN test results as scientific evidence without holding a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.

2023Cir. 1923), “to determine whether the HGN test had been generally accepted as a reliable indicator of alcohol impairment by the relevant scientific community.” Under the standard set forth in Frye, “ ‘scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” ’ ” McKown I, 226 Ill. 2d at 254 (quoting In re Commitment of Simons, 213 Ill. 2d 523, 529-30 , 821 N.E.2d 1184, 1188-89 (2004), quoting Frye, 293 F. at 1014 ). ¶ 62 T

2010Although the State had the burden on remand of demonstrating that the HGN test meets the Frye standard (People v. Basler, 193 Ill. 2d 545, 551 (2000)), the presentation of evidence began with the testimony of a witness called by the defendant.

2010Although the State had the burden on remand of demonstrating that the HGN test meets the Frye standard (People v. Basler, 193 Ill. 2d 545, 551 (2000)), the presentation of evidence began with the testimony of a witness called by the defendant.

2014See People v. McKown, 236 Ill. 2d 278, 311 (2010) (“Error will be deemed harmless and a new trial unnecessary when 'the competent evidence in the record establishes the defendant's guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result.' " (quoting People v. Arman, 131 Ill. 2d 115, 124 (1989)). ¶ 35 As explained earlier, the State produced enough evidence even without the HGN test results to convict Morris of driving under the influence.

2014See People v. McKown, 236 Ill. 2d 278, 311 (2010) (“Error will be deemed harmless and a new trial unnecessary when 'the competent evidence in the record establishes the defendant's guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result.' " (quoting People v. Arman, 131 Ill. 2d 115, 124 (1989)). ¶ 35 As explained earlier, the State produced enough evidence even without the HGN test results to convict Morris of driving under the influence.

2008Defendant alleged the results must be excluded because the officer did not conduct the HGN test as required by this court's decision in People v. Kirk, 289 Ill.

2008Defendant alleged the results must be excluded because the officer did not conduct the HGN test as required by this court's decision in People v. Kirk, 289 Ill.

2020Strickland v. Washington, 466 U.S. 668, 685-86 (1984).

2020Strickland v. Washington, 466 U.S. 668, 685-86 (1984).

2018See United States v. Glynn , 578 F.Supp.2d 567 , 569-75 (S.D.N.Y. 2008) ; United States v. Monteiro , 407 F.Supp.2d 351 , 355 (D.

2018See United States v. Glynn , 578 F.Supp.2d 567 , 569-75 (S.D.N.Y. 2008) ; United States v. Monteiro , 407 F.Supp.2d 351 , 355 (D.

2018See United States v. Glynn , 578 F.Supp.2d 567 , 569-75 (S.D.N.Y. 2008) ; United States v. Monteiro , 407 F.Supp.2d 351 , 355 (D.

2018See United States v. Glynn , 578 F.Supp.2d 567 , 569-75 (S.D.N.Y. 2008) ; United States v. Monteiro , 407 F.Supp.2d 351 , 355 (D.

2026See id. at 306 ; see also People v. Korzenewski, 2012 IL App (4th) 101026, ¶ 21 (proper foundation where officer testified that he was both trained to administer and administered the HGN test in accordance with the NHTSA Manual). ¶ 60 Defendant’s challenge to the HGN evidence also has merit to the extent he argues that Loyd improperly testified that the HGN test showed a likelihood of being over the legal limit.

2026See id. at 306 ; see also People v. Korzenewski, 2012 IL App (4th) 101026, ¶ 21 (proper foundation where officer testified that he was both trained to administer and administered the HGN test in accordance with the NHTSA Manual). ¶ 60 Defendant’s challenge to the HGN evidence also has merit to the extent he argues that Loyd improperly testified that the HGN test showed a likelihood of being over the legal limit.

2026See People v. Borys, 2013 IL App (1st) 111629, ¶¶ 40-41 (error in admission of officer’s HGN testimony was harmless where other evidence alone was sufficient to prove defendant guilty of DUI beyond a - 29 - reasonable doubt); People v. Graves, 2012 IL App (4th) 110536, ¶ 33 (finding any error in the admission of the HGN test results was harmless where the competent evidence showed defendant had failed two additional field sobriety tests).

2015See People v. Borys, 2013 IL App (1st) 111629, ¶ 39 (stating “[o]ur review of the NHTSA [manual] *** indicates -5- that the stimulus must be positioned approximately 12 to 15 inches from the suspect’s nose and slightly above eye level”).

2023Cir. 1923), “to determine whether the HGN test had been generally accepted as a reliable indicator of alcohol impairment by the relevant scientific community.” Under the standard set forth in Frye, “ ‘scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” ’ ” McKown I, 226 Ill. 2d at 254 (quoting In re Commitment of Simons, 213 Ill. 2d 523, 529-30 , 821 N.E.2d 1184, 1188-89 (2004), quoting Frye, 293 F. at 1014 ). ¶ 62 T

2023Cir. 1923), “to determine whether the HGN test had been generally accepted as a reliable indicator of alcohol impairment by the relevant scientific community.” Under the standard set forth in Frye, “ ‘scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” ’ ” McKown I, 226 Ill. 2d at 254 (quoting In re Commitment of Simons, 213 Ill. 2d 523, 529-30 , 821 N.E.2d 1184, 1188-89 (2004), quoting Frye, 293 F. at 1014 ). ¶ 62 T

2023See People v. Morris, 2014 IL App (1st) 130152, ¶ 22 , 16 N.E.3d 269 (citing Gordon, 378 Ill.

2023See People v. Morris, 2014 IL App (1st) 130152, ¶ 22 , 16 N.E.3d 269 (citing Gordon, 378 Ill.

2023See People v. Phillips, 2015 IL App (1st) 131147, ¶ 24 (“[B]ecause [the defendant] does not challenge the admissibility of the HGN test on appeal, but rather its probative value, his challenge goes to the weight accorded to this evidence, which is a factual determination reserved for the trier of fact.”). ¶ 29 To that point, defendant further claims that Mosley was not credible because the video directly contradicted his testimony.

2023See People v. Phillips, 2015 IL App (1st) 131147, ¶ 24 (“[B]ecause [the defendant] does not challenge the admissibility of the HGN test on appeal, but rather its probative value, his challenge goes to the weight accorded to this evidence, which is a factual determination reserved for the trier of fact.”). - 11 - No. 1-21-1497 ¶ 38 To that point, defendant first contends that he speaks Spanish and Brown did not ascertain that defendant fully understood his instructions.

2007Instead, the Buening court based its holding of general acceptance on threé reasons: (1) the fact that the United States Department of Transportation Test Manual called the HGN test “the single most accurate field test used in determining whether a person is alcohol impaired”; (2) the NHTSA found that an officer’s ability to detect whether a driver is under the influence of alcohol improves when the HGN test is used in conjunction with the walk-and-turn field-sobriety test (NHTSA, Improved Sobriety Testing (1984)); and (3) the reasoning set forth in Blake, which Buening called “one of the more

2007Instead, the Buening court based its holding of general acceptance on threé reasons: (1) the fact that the United States Department of Transportation Test Manual called the HGN test “the single most accurate field test used in determining whether a person is alcohol impaired”; (2) the NHTSA found that an officer’s ability to detect whether a driver is under the influence of alcohol improves when the HGN test is used in conjunction with the walk-and-turn field-sobriety test (NHTSA, Improved Sobriety Testing (1984)); and (3) the reasoning set forth in Blake, which Buening called “one of the more

2010See Ballard v. State, 955 P.2d 931 (Alaska App. 1998) (HGN test results admissible to show that a defendant has consumed alcohol and is potentially impaired); State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171 (1986) (holding that with proper foundation, testimony regarding nystagmus is admissible as evidence that a defendant was driving while under the influence of alcohol); People v. Joehnk, 35 Cal. App. 4th 1488 , 42 Cal. Rptr. 2d 6 (1995) (when combined with results of other field-sobriety tests and with the officer’s observations, HGN is a useful tool in reaching opinion as to whether

2010See Ballard v. State, 955 P.2d 931 (Alaska App. 1998) (HGN test results admissible to show that a defendant has consumed alcohol and is potentially impaired); State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171 (1986) (holding that with proper foundation, testimony regarding nystagmus is admissible as evidence that a defendant was driving while under the influence of alcohol); People v. Joehnk, 35 Cal. App. 4th 1488 , 42 Cal. Rptr. 2d 6 (1995) (when combined with results of other field-sobriety tests and with the officer’s observations, HGN is a useful tool in reaching opinion as to whether

2010See Ballard v. State, 955 P.2d 931 (Alaska App. 1998) (HGN test results admissible to show that a defendant has consumed alcohol and is potentially impaired); State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171 (1986) (holding that with proper foundation, testimony regarding nystagmus is admissible as evidence that a defendant was driving while under the influence of alcohol); People v. Joehnk, 35 Cal. App. 4th 1488 , 42 Cal. Rptr. 2d 6 (1995) (when combined with results of other field-sobriety tests and with the officer’s observations, HGN is a useful tool in reaching opinion as to whether

2010See Ballard v. State, 955 P. 2d 931 (Alaska App. 1998) (HGN test results admissible to show that a defendant has consumed alcohol and is potentially impaired); State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171 (1986) (holding that with proper -18- foundation, testimony regarding nystagmus is admissible as evidence that a defendant was driving while under the influence of alcohol);; People v. Joehnk, 35 Cal. App. 4th 1488 , 42 Cal. Rptr. 2d 6 (1995) (when combined with results of other field-sobriety tests and with the officer’s observations, HGN is a useful tool in reaching opinion as to w

2007See State v. Bresson, 51 Ohio St. 3d 123, 129 , 554 N.E.2d 1330, 1336 (1990) (“HGN test cannot be compared to other scientific tests such as a polygraph examination, since no special equipment is required in its administration”); State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990) (because the test may be easily administered and its results objectively recorded by a properly trained officer, it is unnecessary to establish the foundation for such evidence through scientific testimony).

2007See State v. Bresson, 51 Ohio St. 3d 123, 129 , 554 N.E.2d 1330, 1336 (1990) (“HGN test cannot be compared to other scientific tests such as a polygraph examination, since no special equipment is required in its administration”); State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990) (because the test may be easily administered and its results objectively recorded by a properly trained officer, it is unnecessary to establish the foundation for such evidence through scientific testimony).

2007See State v. Bresson, 51 Ohio St. 3d 123, 129 , 554 N.E.2d 1330, 1336 (1990) (“HGN test cannot be compared to other scientific tests such as a polygraph examination, since no special equipment is required in its administration”); State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990) (because the test may be easily administered and its results objectively recorded by a properly trained officer, it is unnecessary to establish the foundation for such evidence through scientific testimony).

2007See State v. Bresson, 51 Ohio St. 3d 123, 129 , 554 N.E.2d 1330, 1336 (1990) (“HGN test cannot be compared to other scientific tests such as a polygraph examination, since no special equipment is required in its administration”); State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990) (because the test may be easily administered and its results objectively recorded by a properly trained officer, it is unnecessary to establish the foundation for such evidence through scientific testimony).

2010See Ballard v. State, 955 P.2d 931 (Alaska App. 1998) (HGN test results admissible to show that a defendant has consumed alcohol and is potentially impaired); State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171 (1986) (holding that with proper foundation, testimony regarding nystagmus is admissible as evidence that a defendant was driving while under the influence of alcohol); People v. Joehnk, 35 Cal. App. 4th 1488 , 42 Cal. Rptr. 2d 6 (1995) (when combined with results of other field-sobriety tests and with the officer’s observations, HGN is a useful tool in reaching opinion as to whether

2010See Ballard v. State, 955 P.2d 931 (Alaska App. 1998) (HGN test results admissible to show that a defendant has consumed alcohol and is potentially impaired); State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171 (1986) (holding that with proper foundation, testimony regarding nystagmus is admissible as evidence that a defendant was driving while under the influence of alcohol); People v. Joehnk, 35 Cal. App. 4th 1488 , 42 Cal. Rptr. 2d 6 (1995) (when combined with results of other field-sobriety tests and with the officer’s observations, HGN is a useful tool in reaching opinion as to whether

2026App. 3d - 27 - 315, 319 (2009) (quoting People v. Sides, 199 Ill.

2026App. 3d - 27 - 315, 319 (2009) (quoting People v. Sides, 199 Ill.

2007Given the recent history of legal challenges to the admissibility of HGN test evidence in this and other states, it seems appropriate that we deem the technique ‘new’ or ‘novel’.” (Emphasis omitted.) Leahy, 8 Cal. 4th at 606 , 882 P.2d at 332 , 34 Cal. Rptr. 2d at 674 .

2007Given the recent history of legal challenges to the admissibility of HGN test evidence in this and other states, it seems appropriate that we deem the technique ‘new’ or ‘novel’.” (Emphasis omitted.) Leahy, 8 Cal. 4th at 606 , 882 P.2d at 332 , 34 Cal. Rptr. 2d at 674 .