The People Of The State Of Ill. v. Mckown

• Decision Date: 19 February 2010
• Docket Number: No. 102372.,102372.
• Citation: 924 N.E.2d 941,236 Ill.2d 278,338 Ill.Dec. 415
• Parties: The PEOPLE of the State of Illinois, Appellee,v.Joanne McKOWN, Appellant.
• Court: Illinois Supreme Court

236 Ill.2d 278

924 N.E.2d 941

338 Ill.Dec. 415

The PEOPLE of the State of Illinois, Appellee,v.Joanne McKOWN, Appellant.

No. 102372.

Supreme Court of Illinois.

Feb. 19, 2010.

COPYRIGHT MATERIAL OMITTED

Donald J. Ramsell, of Ramsell & Associates, Wheaton, Edward M. Maloney, of Ahern, Maloney & Moran, Skokie, and Jason P. Ramos, Peoria, for appellant.

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

OPINION

Justice GARMAN delivered the judgment of the court, with opinion.

Following a bench trial in the circuit court of Peoria County, defendant was convicted of two counts of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(C) (West 2006)), and other offenses. The appellate court affirmed ( People v. McKown, No. 3-04-0433, 363 Ill.App.3d 1216, 334 Ill.Dec. 818, 917 N.E.2d 644 (2006) (unpublished order under Supreme Court Rule 23)), and this court granted her petition for leave to appeal. The single issue raised in her petition was whether she was entitled to a hearing pursuant to the rule of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), before evidence of her performance on a horizontal gaze nystagmus (HGN) test could be admitted. We held that the trial court and the appellate court erred in taking judicial notice that the HGN test is generally accepted as an indicator of alcohol impairment and remanded to the trial court with instructions to conduct a Frye hearing. People v. McKown, 226 Ill.2d 245, 248, 314 Ill.Dec. 742, 875 N.E.2d 1029 (2007) ( McKown I ). We retained jurisdiction and now review the trial court's judgment on that issue.

BACKGROUND

Under the rule of 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.’ ” In re Commitment of Simons, 213 Ill.2d 523, 529-30, 290 Ill.Dec. 610, 821 N.E.2d 1184 (2004), quoting Frye, 293 F. at 1014. Further, the Frye test is necessary only if the scientific principle, technique or test offered by the expert to support his or her conclusion is “new” or “novel.” See People v. Basler, 193 Ill.2d 545, 550-51, 251 Ill.Dec. 171, 740 N.E.2d 1 (2000).

We held in McKown I that “[b]ecause the results of an HGN test require expert interpretation” by a trained police officer, “the results of HGN testing are scientific evidence.” McKown I, 226 Ill.2d at 257, 314 Ill.Dec. 742, 875 N.E.2d 1029. We further held that, despite its use by police officers for many years, “the methodology of HGN testing is novel for purposes of Frye.” McKown I, 226 Ill.2d at 258, 314 Ill.Dec. 742, 875 N.E.2d 1029. Thus, a Frye hearing was necessary “to determine if the HGN test has achieved general acceptance as a reliable indicator of alcohol impairment.” ¹McKown I, 226 Ill.2d at 257, 314 Ill.Dec. 742, 875 N.E.2d 1029. Finally, although we noted that it was appropriate in some circumstances for a trial court to resolve the question of general acceptance via judicial notice ( McKown I, 226 Ill.2d at 254, 314 Ill.Dec. 742, 875 N.E.2d 1029), this particular issue could not be resolved “on judicial notice alone” ( McKown I, 226 Ill.2d at 275, 314 Ill.Dec. 742, 875 N.E.2d 1029). We remanded the matter to the trial court for a Frye hearing to determine whether HGN testing is generally accepted in the particular scientific field to which it belongs as an indicator of alcohol impairment and to make findings of fact and conclusions of law as to this question. McKown I, 226 Ill.2d at 276-77, 314 Ill.Dec. 742, 875 N.E.2d 1029.

Nystagmus is “an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.” Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003). The medical dictionary lists 45 types of nystagmus. For example, ataxic nystagmus is unilateral and occurs in individuals with multiple sclerosis. Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003). Congenital nystagmus “may be caused by or associated with optic atrophy, coloboma, albinism, bilateral macular lesions, congenital cataract, severe astigmatism, and glaucoma.” Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003). Gaze nystagmus, which is at issue in the present case, is “made apparent by looking to the right or to the left,” as opposed to fixation nystagmus, “which appears only on gazing fixedly at an object,” or latent nystagmus, “which occurs only when one eye is covered.” Dorland's Illustrated Medical Dictionary 1296 (30th ed.2003).

The methodology employed by law enforcement officers for conducting an HGN testing as a part of field-sobriety testing is explained in detail in our earlier opinion. In brief, the officer first questions the subject to determine whether he or she has any medical condition or is taking any medication that might affect the results of the test. If not, the officer performs a preliminary test to determine whether the pupils of the subject's eyes are of equal size and whether the eyes “track” equally as an object is moved, at eye level, from side to side. If so, the HGN test itself is performed. The officer looks for three “clues,” assessing each eye separately. The three clues are lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of nystagmus at an angle less than 45 degrees. One point is assigned for each clue that is present in either eye. Thus, the maximum score is six, which would indicate all three clues present in both eyes. A score of four or more is considered “failing” and indicative of alcohol impairment. McKown I, 226 Ill.2d at 249-50, 314 Ill.Dec. 742, 875 N.E.2d 1029.

The Evidence

The Frye hearing was held over the course of four dates between March 2007 and April 2008. The State presented the testimony of Dr. Carl Citek, Master Sergeant Antonio Lebron, Dr. Zenon Zuk, and Thomas Page. Defendant presented the testimony of Dr. Joseph Citron, Dr. Ronald Henson, and Dr. Steven Rubenzer. In addition, each party submitted numerous journal articles and other writings in support of its position. Finally, each party submitted a trial brief arguing for certain findings of fact and conclusions of law.

Although 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, 251 Ill.Dec. 171, 740 N.E.2d 1 (2000)), the presentation of evidence began with the testimony of a witness called by the defendant.

Dr. Joseph Citron testified that he is a board-certified ophthalmologist who received his clinical training at the Mayo Clinic in Rochester, Minnesota. He practices in Atlanta, Georgia, and has over 30 years experience in emergency medical care, including the care of intoxicated patients. In 1999, he completed the National Highway Transportation Safety Administration (NHTSA) training course in field-sobriety testing, which included training in the HGN test. He has 10 years of experience as an instructor on field-sobriety testing for the Atlanta police department and other agencies. He also holds a law degree.

Citron explained the differences in education and training between an ophthalmologist and an optometrist, as well as the fact that an optometrist does not perform surgery or medical diagnosis. He also explained the meaning of the term “nystagmus,” which he described as a condition that is “usually pathologic in origin” and “not part of the normal findings in an individual.” Nystagmus itself is not a diagnosis; it is merely a description of a certain type of eye movement that may be caused by many conditions. He was unable to give a specific number of recognized causes, but agreed with the statement that the number is at least 39. Citron further testified that once an individual had consumed sufficient alcohol to “reach the threshold of central nervous system depression,” he could display nystagmus.

With regard to the HGN test performed by law enforcement officers, Citron explained that the test is not performed in the same manner as the test a physician would perform during the examination of a patient. He then explained that the NHTSA, which is a division of the United States Department of Transportation, has promulgated standards for performing the HGN test as a field-sobriety test. These standards must be observed “in the same fashion every time by everybody” and individual test results would be invalid if the test were not performed in the “prescribed standardized fashion.” He then made a presentation regarding the proper procedure for performing the HGN test.

Citron testified that based on a “failed” HGN test alone, one could not form an opinion that the cause of the failure was alcohol. The test is a “preliminary test.” It is “the beginning of an evaluation, not the conclusion.” Further, if one offered an opinion that the failure of the test was caused by alcohol, that opinion would be conjecture or speculation. Finally, Citron testified that a failed HGN test is a sign that the subject's central nervous system (CNS) is depressed. While the cause of CNS depression might be recent consumption of alcohol, the failed test is not an indicator of actual impairment due to alcohol.

On cross-examination by the State, Citron reiterated that HGN can be an indicator of alcohol consumption and that an officer who observes a failed HGN test can “put the presence of alcohol as a central nervous system depressant on a list of possible causes for these findings.”

The State's case began with the testimony of Master Sergeant Lebron of the Illinois State Police. He holds a bachelor's degree in law enforcement administration and, as part of his training to become a state trooper, received training in the administration of...