¶28 (dissenting) — Without a basis in case law or any evidence in the record, the majority improperly creates a new bright-line rule regarding the limits of a particular test that police officers routinely use to determine alcohol impairment, the horizontal gaze nystagmus (HGN) test. The parties did not raise the issue of the HGN test’s scientific merits at trial, and there is no evidence in the record regarding any scientific studies on the test, its accuracy, or its limits. We are not optometrists or drug recognition experts, and we should not make such conclusive scientific determinations in the absence of evidence and testimony from experts in the field. This is particularly problematic because limiting the conclusions that can be drawn from the HGN test creates a way for drunk drivers to evade prosecution by refusing the breath test and being so uncooperative with police officers that conducting other sobriety tests is not feasible.
¶29 The actual issue in front of the trial court was whether Trooper Chris Stone’s statement that he had “no doubt” Ryan Quaale was impaired, Partial Verbatim Report of Proceedings (PVRP) at 33, was an opinion on an issue of fact (and thus permissible) or an opinion on his guilt (and thus impermissible). Under our long-standing precedent on opinion testimony, Trooper Stone’s testimony did not constitute an impermissible opinion on Quaale’s guilt. I respectfully dissent.
FACTS
¶30 In addition to the majority’s listed facts, I would note that Trooper Stone gave extensive foundation testimony about the HGN test. Officers administer the HGN test to persons suspected of driving under the influence (DUI). Generally, officers take a pen or other stimulus, hold it 12 to 15 inches away from a suspect’s face, and move the pen from side to side to check for eye nystagmus. Put simply, “eye nystagmus” is the involuntary jerking of the eye, and per*204sons who are intoxicated from alcohol exhibit nystagmus. The crucial foundation testimony Trooper Stone gave about the HGN test was that if the nystagmus of the eye starts earlier in the test, it means the test subject is more impaired. Specifically, when the prosecutor asked Trooper Stone when the eye nystagmus started in this case, Trooper Stone responded:
The bouncing in this case began immediately. As soon as I started to move the pen, it began immediately. The higher the impairment, the sooner it begins to bounce. So if you don’t see it until forty-five [degrees], . . . then they are . . . most likely they are not going to be impaired. Anything before that is going to be more impaired and after that is going to be less impaired.
PVRP at 25. Quaale did not object to that testimony.
ANALYSIS
¶31 As explained below, the majority’s rigid holding regarding the limits of the HGN test is not supported by case law or the evidence in the record. The key case the majority relies on — State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000) — did not address HGN tests in the DUI alcohol detection context, and it did not contemplate the limits of the HGN test with regard to alcohol impairment. Further, there is no record in this case regarding the scientific merits of the HGN test because Quaale did not object at trial and did not submit any evidence regarding the limitations of the HGN test. This newly created strict limit on the HGN test is particularly concerning because it will incentivize drunk drivers to evade other standard field sobriety tests, putting law enforcement officials in an untenable situation.
1. The Majority’s Reliance on Baity Is Misplaced
¶32 The majority errs by relying on Baity to limit testimony regarding the HGN test in the DUI alcohol detection context because Baity did not address that issue. Baity did *205not address whether the HGN test alone can identify someone who is impaired as opposed to someone who has merely consumed alcohol. The primary issue in Baity was whether “a drug recognition protocol, used by trained drug recognition officers to determine if a suspect’s driving is impaired by a drug other than alcohol, meets the requirements of Frye v. United States, [54 App. D.C. 46, 293 F. 1013] (1923), for novel scientific evidence.” Id. at 3 (emphasis added). The drug recognition protocol involved the HGN test, and we held that HGN testing “is generally accepted in the relevant scientific communities” and thus that “the forensic application of HGN to drug intoxication in the DRE [(drug recognition expert)] context satisfies Frye” Id. at 14. We noted that
an officer may not testify in a fashion that casts an aura of scientific certainty to the testimony. The officer also may not predict the specific level of drugs present in a suspect. The DRE officer, properly qualified, may express an opinion that a suspect’s behavior and physical attributes are or are not consistent with the behavioral and physical signs associated with certain categories of drugs.
Id. at 17-18. That language from Baity does not say that the HGN test alone cannot show impairment from alcohol — it did not even contemplate what exactly HGN can show in the alcohol detection context. Baity simply prohibits DRE officers from testifying in a manner that implies a suspect’s “drug intoxication” is a scientific fact and from placing specific numbers on a suspect’s intoxication level. See id.
¶33 Here, Trooper Stone’s testimony did not violate the actual limits imposed by Baity because (1) this is an alcohol impairment case and (2) he did not imply Quaale’s impairment was a scientific fact and did not put a specific level on Quaale’s impairment. Trooper Stone merely stated that he had “no doubt” that Quaale was impaired from alcohol based on the HGN test. That testimony is very similar to a case in which our Court of Appeals properly held that an officer’s testimony constituted a permissible opinion on the *206ultimate issue of fact. See City of Seattle v. Heatley, 70 Wn. App. 573, 576-77, 579-80, 854 P.2d 658 (1993) (holding that the officer’s testimony that the defendant was “ ‘obviously intoxicated and affected by the alcoholic drink that ... he could not drive a motor vehicle in a safe manner’ ” was not an impermissible opinion on guilt).
¶34 The majority intensely focuses on the prosecutor’s question as to whether “based on the HGN test alone” Trooper Stone could determine whether Quaale was impaired. PVRP at 33. The majority combines that question and Trooper Stone’s response with its own scientific determination that the HGN test alone cannot show impairment in order to reverse. However, the majority’s intense focus on the prosecutor’s question and Trooper Stone’s response ignores the fact that the jury heard extensive foundation testimony about the HGN test and assumes that the jury heard Trooper Stone’s “no doubt” testimony in a vacuum. Quaale did not object during the crucial foundation testimony for what the HGN test can show regarding impairment. The jury properly heard and considered Trooper Stone’s testimony that the sooner nystagmus starts during the HGN test, the more impaired the suspect is — and that Quaale’s nystagmus started immediately. Additionally, the jury heard testimony that (1) Quaale was driving 56 miles per hour in a 25-mile-per-hour residential zone, (2) Quaale overshot a corner and skidded into a homeowner’s yard, leaving 98 feet of skid marks, (3) Trooper Stone immediately smelled a strong odor of intoxicants on Quaale’s breath when he approached Quaale, and (4) when Trooper Stone drove Quaale to the station, he had to roll the windows down because the alcohol smell was so strong.
2. The HGN Test Issue Was Not Presented to the Trial Court, and There Is No Evidence in the Record about Its Merits
¶35 Not only is the issue of whether the HGN test alone can show impairment not discussed in Baity, but the parties *207here did not present that issue to the trial court. The amicus group Washington Foundation for Criminal Justice cited cases from foreign jurisdictions detailing extensive trial court records including studies and criticisms of HGN testing, but even they admit that “[t]he parties did not present such a record to the trial court in Quaale.” Br. of Amicus Curiae Wash. Found, for Criminal Justice at 13. There is nothing in the record contradicting the scientific accuracy of Trooper Stone’s foundation testimony about what the HGN test shows. I am unwilling to take the majority’s leap and make my own scientific determination when the issue was not presented to the trial court. Instead, we should adhere to our precedent and apply the factors we have traditionally used to determine whether testimony is an impermissible opinion on guilt. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion).
3. Under the Demery Factor Analysis, the Testimony in This Case Was Permissible
¶36 We consider the unique circumstances of each case to determine whether testimony constitutes an improper opinion on guilt, guided by the following factors: “(1) ‘the type of witness involved,’ (2) ‘the specific nature of the testimony,’ (3) ‘the nature of the charges,’ (4) ‘the type of defense, and’ (5) ‘the other evidence before the trier of fact.’ ” Id. (quoting Heatley, 70 Wn. App. at 579). Applying those factors, Trooper Stone’s testimony was not an impermissible opinion on guilt. I will discuss each factor in turn.
A. The Type of Witness Involved
¶37 The witness who offered the challenged testimony was a state trooper. Opinion testimony from police officers carries an “ ‘aura of reliability’ ” that could unduly influence a jury. State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008) (quoting Demery, 144 Wn.2d at 765). This factor weighs against admissibility.
*208 B. Nature of the Charges and the Specific Nature of the Testimony
¶38 The charge at issue was DUI, and the testimony was that Trooper Stone had “no doubt” Quaale was impaired. PVRP at 33. Generally, that type of testimony is admissible, as officers as well as laypersons may offer an opinion that a defendant was intoxicated. State v. Easter, 130 Wn.2d 228, 235, 922 P.2d 1285 (1996) (citing State v. Forsyth, 131 Wash. 611, 230 P. 821 (1924)). However, “opinion testimony should be avoided if the information can be presented in such a way that the jury can draw its own conclusions.” Montgomery, 163 Wn.2d at 591. Also, opinions on ultimate issues are more problematic when the opinions parrot the legal standard. Id. at 594.
¶39 Trooper Stone’s testimony did not parrot the legal standard, and it is substantially similar to testimony our courts have found not to be improper opinions on guilt. First, Trooper Stone’s opinion did not parrot the legal standard, as the word “impaired” does not appear in the DUI statute. See RCW 46.61.502. Rather, a person is guilty of a DUI for driving “[w]hile the person is under the influence of or affected by intoxicating liquor.” RCW 46.61-.502(l)(c). Trooper Stone did not testify that he believed Quaale was “under the influence” or “affected by intoxicating liquor.” Rather, he testified that he believed Quaale was “impaired.” PVRP at 33.
¶40 Second, Trooper Stone’s “no doubt” testimony is permissible conclusory language in a DUI trial not premised on the breath test. As discussed above, I find Heatley persuasive and analogous to this case, and we have cited favorably to it on several occasions. In Heatley, the prosecutor asked the arresting officer to give his opinion regarding the “ ‘defendant’s impairment due to his use of alcohol.’ ”70 Wn. App. at 576. The officer responded:
Based on my, his physical appearance and my observations of that and based on all the tests I gave him as a whole, I *209determined that Mr. Heatley was obviously intoxicated and affected by the alcoholic drink that he’d been, he could not drive a motor vehicle in a safe manner. At that time, I did place Mr. Heatley under arrest for DWI.
Id. Our Court of Appeals held that testimony did not amount to an impermissible opinion on guilt. Id. at 580. It reasoned that the officer did not directly testify that he felt the defendant was guilty. Id. at 579. The fact that the opinion directly supported a finding of guilt did not disqualify it; instead, the court noted that “ ‘[i]t is the very fact that such opinions imply that the defendant is guilty which makes the evidence relevant and material.’ ” Id. (quoting State v. Wilber, 55 Wn. App. 294, 298 n.1, 777 P.2d 36 (1989)). Moreover, the court reasoned that the officer based his opinion on his experience and his personal observations of the defendant’s appearance and performance of field sobriety tests. Id. Thus, the opinion had a foundation that “ ‘directly and logically’ supported the officer’s conclusion.” Id. (quoting State v. Allen, 50 Wn. App. 412, 418, 749 P.2d 702 (1988)).
¶41 I find few differences here. Trooper Stone never testified that he thought Quaale was guilty of DUI. Instead, he testified about the HGN test, Quaale’s dangerous and poor driving, and the strong odor of intoxicants on Quaale’s breath — all of which directly and logically support Trooper Stone’s conclusion that he had “no doubt” Quaale was impaired. Although the prosecutor unartfully asked whether Trooper Stone formed an opinion based on the HGN test alone, any rational juror would have clearly processed Trooper Stone’s opinion in conjunction with his personal observations of Quaale’s dangerous driving and breath. The fact that Trooper Stone’s testimony directly supports a finding of guilt is not fatal — that is precisely what makes it relevant. And Trooper Stone’s “no doubt” language mirrors the permissible conclusory term that the defendant was “ ‘obviously intoxicated’ ” in Heatley. Id. at 576.
*210¶42 Because Trooper Stone’s testimony did not parrot the legal standard and is permissible conclusory language, these factors weigh in favor of admissibility.
C. The Type of Defense
¶43 Quaale’s primary defense was that Trooper Stone failed to conduct a thorough investigation. Trooper Stone’s “no doubt” testimony did nothing to hinder Quaale’s defense; arguably, it strengthened it. Read in isolation, Trooper Stone testified that based on the HGN test alone, he concluded Quaale was impaired. On cross-examination, the officer acknowledged that there are other standard field sobriety tests that he did not perform, including the “walk and turn” and the “one leg stand,” because he did not want to risk Quaale running off again. PVRP at 34-35. He also acknowledged that his police report failed to include anything about Quaale’s coordination, attitude, or clothes, or whether he had watery or bloodshot eyes, a flushed face, or slurred speech. Quaale was able to develop his defense attacking the investigation and Trooper Stone’s credibility for basing his conclusion solely on the HGN test. Additionally, the defense differentiated between the level of certainty needed to make an arrest and the level needed to convict. Trooper Stone readily acknowledged that his investigation is intended to develop probable cause and that probable cause is not the same as beyond a reasonable doubt.
¶44 Thus, Trooper Stone’s testimony arguably strengthened Quaale’s defense. This factor weighs in favor of admissibility.
D. The Other Evidence
¶45 The evidence presented to the jury other than the HGN test was the strong intoxicant odor of Quaale’s breath and his dangerous driving. As mentioned above, this court has cautioned that “opinion testimony should be avoided if the information can be presented in such a way that the *211jury can draw its own conclusions.” Montgomery, 163 Wn.2d at 591. But here, the State could not present additional evidence in a way that would have better allowed the jury to draw its own conclusions about Quaale’s impairment because of Quaale’s bad conduct. Trooper Stone did not conduct other field sobriety tests because Quaale had just led him on a chase down a residential road at night, and far from backup in a remote area, Trooper Stone feared that Quaale would attempt to flee again if he released him to perform the other tests. The State could not submit evidence from a breath test because Quaale refused to take it. The State has a legitimate concern when it asks, “How would DUI prosecutions based on a refusal to take the breath test be prosecuted if the police officer cannot express an opinion regarding the defendant’s impairment?” Suppl. Br. of Pet’r at 8. The majority’s decision will seriously hinder DUI prosecutions in which defendants refuse the breath test and are so uncooperative that field sobriety tests other than the HGN test are not feasible.
¶46 In DUI prosecutions not involving the breath test, the State often has to prove that the suspect was affected by alcohol using officer testimony alone. The evidence rules allow that testimony to go to the ultimate factual issue before the jury. ER 704. And, as in this case, that testimony is permissible as long as an officer refrains from testifying that he or she believes that the defendant is guilty. This factor does not weigh against admissibility because the State did not rely solely on the HGN test to prove guilt and Quaale’s bad conduct hindered Trooper Stone’s ability to administer the other field sobriety tests.
¶47 Thus, after analyzing the factors, I would find Trooper Stone’s testimony permissible. While one factor— the fact that the testimony came from a state trooper— weighs against admissibility, the other factors either weigh in favor of admissibility or are neutral at best.
*212CONCLUSION
¶48 I would reverse the Court of Appeals and hold that Trooper Stone’s testimony that he had “no doubt” Quaale was impaired did not amount to an impermissible opinion on guilt. The majority improperly uses Baity to make its own scientific determination about HGN tests without any basis in the record, and it incentivizes drunk drivers to be uncooperative with officers in order to limit the amount of evidence the State can use at trial. I would not come to such rigid conclusions about what the HGN test can tell us regarding alcohol impairment without a full record developed at the trial level. After analyzing Trooper Stone’s “no doubt” testimony under the Demery factors, I conclude that Quaale’s right to have facts adjudicated by a jury was not violated. I respectfully dissent.
Fairhurst, Stephens, and González, JJ., concur with Owens, J.