People v. McKown

Decision Date20 September 2007
Docket NumberNo. 102372.,102372.
Citation875 N.E.2d 1029,226 Ill.2d 245
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Joanne McKOWN, Appellant.
CourtIllinois Supreme Court

of the State Appellate Defender, Ottawa, for appellant.

Lisa Madigan, Attorney General, Springfield, Kevin Lyons, State's Attorney, Peoria (Gary Feinerman, Solicitor General, Michael M. Glick, Michael R. Blankenheim, Assistant Attorneys General, Chicago, of counsel), for the People.

OPINION

Justice BURKE delivered the judgment of the court, with opinion:

At issue in this case is whether the trial court properly admitted testimony regarding the results of a Horizontal Gaze Nystagmus (HGN) test1 at defendant Joanne McKown's trial for driving under the influence of alcohol. Over objection, the trial court admitted the testimony of the arresting officer regarding the administration and results of an HGN test performed on defendant without first holding an evidentiary hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (a "Frye hearing") to determine whether HGN testing had been generally accepted as a reliable indicator of alcohol impairment.2

The circuit court of Peoria County admitted the testimony by taking judicial notice of the general acceptance of the reliability of the HGN test as an indicator of alcohol impairment based on previous Illinois opinions. The appellate court affirmed the trial court, agreeing that a Frye hearing was not necessary. No. 3-04-0433 (unpublished order under Supreme Court Rule 23).

For the reasons that follow, we hold that the trial court and the appellate court erred in taking judicial notice of the general acceptance of the reliability of the HGN test as an indicator of alcohol impairment. We remand this cause to the trial court with instructions to conduct a Frye hearing.

BACKGROUND

After a bench trial, defendant was found guilty of two counts of aggravated driving under the influence of alcohol (625 ILCS 5/11-501(d)(1)(C) (West 2006)), two counts of aggravated reckless driving (625 ILCS 5/11-503(c) (West 2006)), one count of reckless driving (625 ILCS 5/11-503(a) (West 2006)), and one count of driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2006)). The evidence against her consisted of three witness accounts and the observations and opinion of a police officer who administered an HGN test to her.

The HGN test purportedly measures nystagmus, which has been defined as an abnormal and involuntary rapid movement of the eyeballs up and down, or more commonly, side to side. 2 Schmidt's Attorney's Dictionary of Medicine 61 (1978). Many people will exhibit some nystagmus, or jerking, as their eyes track to the extreme side. However, with an intoxicated person, the onset of the nystagmus, or jerking of the eyeball, occurs after fewer degrees of lateral deviation from center, and the jerking is more pronounced at extreme angles. While nystagmus is an indication of alcoholic consumption, it is also a symptom of many other ailments. N. Miller & N. Newman, Walsh & Hoyt's Clinical Neuro-Ophthalmology 1142 (6th ed.2005).

Because alcohol consumption can cause nystagmus, police officers have been trained to check a person's eye movements when attempting to determine if a driver has been driving while impaired by alcohol. The National Highway Traffic Safety Association's (NHTSA) DWI Detection and Standardized Field Sobriety Testing Instructor Manual sets forth the procedure for administering an HGN test in the field. First, the officer is required to ask the subject if he or she wears contact lenses or has any medical impairment that would affect the test results or prohibit the subject from taking the test. If the subject claims to wear hard contacts, or have natural nystagmus or any other condition that may affect the test results, the officer should note the condition but still administer the test if possible. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).

After these preliminary questions, the officer asks the subject to focus on an object, such as a pen, held just above eye level, about 12 to 15 inches from the subject's nose, and to follow the object as the officer gradually moves it from side to side.

While conducting the test, the officer looks for six nystagmus "clues," three in each eye, that, according to the NHTSA Manual, indicate impairment. If four or more clues are present, the subject is determined to have failed the test and be impaired. The clues are (1) lack of smooth pursuit; (2) distinct nystagmus at maximum deviation, meaning any nystagmus exhibited when the eyeball is looking as far to the side as possible; and (3) angle of onset of nystagmus prior to 45 degrees, meaning any nystagmus that occurs before the object reaches a point that the officer determines to be 45 degrees from the center of the suspect's face. No measuring apparatus is used in the 45-degree test. The officer is then instructed to have the subject perform the walk-and-turn field-sobriety test and the one-leg-stand field-sobriety test, compile the results of the three tests, and then make the decision whether to arrest the subject. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).

At a bench trial, witnesses testified that, sometime before 11:30 a.m. on the morning of June 8, 2002, defendant was driving her car at a high rate of speed along Maher Road in Peoria County when she veered into oncoming traffic, causing at least three motorcycle riders who were traveling in the opposite direction to strike her vehicle and be thrown from their motorcycles. Two riders, Sharon and Alan Anderson, suffered severe injuries. Another rider, Robert Stanley, was thrown from his motorcycle but escaped relatively unharmed.

Local resident Randall Retherford testified that he was driving his truck on Maher Road around 11:30 a.m. on June 8, 2002. While idling at the intersection of Maher Road and Frye Road, waiting for a group of motorcycles to pass so he could make a left turn onto Frye, he looked into his rearview mirror and saw defendant's car approaching. Retherford stated that he drove his truck onto the shoulder of the road upon seeing defendant's car because he felt it was approaching at a high rate of speed. Retherford then described the accident: "I seen [sic] the vehicle apparently lock up its wheels, veer to the left, and I seen [sic] motorcycles hitting it."

Retherford's testimony was corroborated by Stanley, who also testified that, following the accident, defendant came over to him as he lay on the ground and offered to help him remove his motorcycle helmet. Stanley testified that, during the approximately 45 seconds defendant was speaking to him, he smelled beer on her breath.

A third witness, Chad Morris, testified that he had been riding a motorcycle behind the Andersons and Stanley, when he saw Retherford "getting off the side of the road because he had seen, um, a car coming up fast on his tail." Morris testified that he heard squealing tires and witnessed defendant's car veering into his lane and sliding sideways into the oncoming motorcycles. Morris stated that he was able stop his motorcycle in time to avoid contact with defendant's car.

The arresting officer, Deputy Martin Klatt of the Peoria County sheriff's department, testified that he arrived at the scene of the accident shortly after 11:30 a.m. and found a partially full can of beer in defendant's car while searching for her registration and proof of insurance. Apparently, defendant had been taken to St. Francis Hospital before Klatt arrived at the accident scene. Klatt testified that he went to the hospital and advised defendant of her Miranda rights around 1 p.m. According to Klatt, when he saw defendant, she was slurring her speech, and had bloodshot eyes and a strong odor of beer on her breath. Klatt testified that defendant told him that she had not been drinking that day, and that she felt that the motorcycles came into her lane, causing the accident.

When Klatt told defendant that he had found an open can of beer in her car, she admitted that she had consumed two cans of beer before leaving her house, another can while driving, and had opened a fourth can just prior to the accident. Klatt then advised her that the skid marks on the road indicated that she swerved out of her lane and into the oncoming motorcycles. Upon hearing this, defendant stated that she had no explanation for what happened. Klatt testified that defendant stated that she worked the night shift at a chemical plant and had only slept for four hours the previous night.

Klatt then testified that he administered an HGN test to defendant while she sat in her hospital bed. Defendant objected to Klatt's testimony, arguing that HGN test results are scientific evidence that has not been found to satisfy Frye in Illinois. After a discussion with counsel, the trial court took judicial notice of the plurality opinion in People v. Basler, 193 Ill.2d 545, 251 Ill.Dec. 171, 740 N.E.2d 1 (2000) (plurality op.), and held that the HGN test met the Frye standard.

Klatt described the HGN test to the court, stating that it was "an eye test and it uses the involuntary flutter of your eye, and it's been shown that certain—that when you're under impairment of alcohol, and some drugs, that your—when your eye is moving a certain way that it will involuntarily shutter, or shake, or jerk." Klatt explained that he had been trained in performing the HGN test, and that he had administered the HGN test "hundreds of times" in the field. Klatt did not provide any details regarding his training.

Klatt testified that, while he was performing the test on defendant, he "observed that she had no smooth pursuit with either eye[,] * * * nystagmus on maximum deviation with both eyes" and...

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    ...). The Frye standard is limited to scientific methodology that is considered “new” or “novel.” People v. McKown, 226 Ill.2d 245, 257, 314 Ill.Dec. 742, 875 N.E.2d 1029 (2007)( McKown I). General acceptance of a methodology “does not require that the methodology * * * be accepted by unanim......
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8 books & journal articles
  • Authentication
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2015 Contents
    • July 31, 2015
    ...test, appeared to be in good working order, and did not appear to have parts missing on the date of the arrest. People v. McKown , 875 N.E.2d 1029 (Ill. 2007). Trial court erred in taking judicial notice of the general acceptance of horizontal gaze nystagmus testing as reliable indicator of......
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    ...test, appeared to be in good working order, and did not appear to have parts missing on the date of the arrest. People v. McKown , 875 N.E.2d 1029 (Ill. 2007). Trial court erred in taking judicial notice of the general acceptance of horizontal gaze nystagmus testing as reliable indicator of......
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    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • July 31, 2016
    ...test, appeared to be in good working order, and did not appear to have parts missing on the date of the arrest. People v. McKown , 875 N.E.2d 1029 (Ill. 2007). Trial court erred in taking judicial notice of the general acceptance of horizontal gaze nystagmus testing as reliable indicator of......
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    • July 31, 2017
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