(concurring specially).
[¶ 23.] The conference opinion concludes, “HGN testing is nationally recognized as a reliable field sobriety test and if it can be shown that the test was properly administered by a trained officer, such evidence should be admitted for a jury to consider at trial along with evidence of the other accepted field sobriety tests administered in this state.” I do not disagree that once the proper evidentiary hoops have been cleared, HGN tests can be admitted into evidence, but I do believe it is important to ensure that they are properly admitted.
[¶ 24.] Most courts treat HGN tests as scientific evidence, rather than common knowledge, and require presentation of a proper foundation before admission, and we should do the same. See State v. Witte, 251 Kan. 313, 836 P.2d 1110, 1115 (1992). Although not all field sobriety tests are treated as scientific evidence, HGN tests should be. “The relationship between the effects of alcohol on the central nervous system, the nystagmus phenomenon, and the HGN test is not within the realm of common knowledge of the average person. Other field sobriety tests, such as the walk-and-turn test, the one-leg-stand test, and the modified finger-to-nose test, obtain their legitimacy from effects of intoxication based on propositions of common knowledge.” State v. O’Key, 321 Or. 285, 899 P.2d 663, 675 (1995) (internal citation omitted). The common knowledge being “that excessive alcohol can cause coordination, balance, and mental agility problems.” State v. Doriguzzi, 334 N.J.Super. 530, 760 A.2d 336, 340 (N.J.Super.Ct.App.Div.2000) (holding HGN test is scientific and must meet Frye standards). The correlation between the amount of alcohol a person consumes and the angle of the onset of the nystagmus is not mere common knowledge. Although no special equipment is required to administer the HGN test, and the procedure of holding an object a certain distance from the eye and judging certain angles and eye responses does not sound technical, the underlying principle of correlating alcohol consumption to nystag-mus is technical.
[¶ 25.] Furthermore, there is still disagreement about the appropriate angle for the onset of nystagmus, the accuracy of the test, other causes of nystagmus, and the effect of the body’s circadian rhythm on nystagmus. Witte, 836 P.2d at 1119-20. One court noted:
The arresting officer’s ‘reading’ of the HGN test cannot be verified or duplicated by an independent party.... The test’s recognized margin of error provides problems as to criminal convictions!,] which require proof of guilt beyond a reasonable doubt. The circumstances under which the test is administered at roadside may affect the reliability of the test results. Nystag-mus may be caused by conditions other than alcohol intoxication....
Faires v. State, 711 So.2d 597, 598 (Fla.App.1998). Therefore, there is not a clear acceptance of the test across the board, *262which is what the conference opinion indicates.
[¶ 26.] I believe we should ensure that witnesses who testify about the HGN test are properly qualified. The Daubert test should be used to ensure “the proponent offering expert testimony must show that the expert’s theory or method qualifies as scientific, technical, or specialized knowledge under SDCL 19-15-2[.]” State v. Guthrie, 2001 SD 61, ¶ 34, 627 N.W.2d 401, 415-16. See also O’Key, 321 Or. 285, 899 P.2d 663 (treating HGN as scientific evidence and applying the Daubert test). Cf. Witte, 836 P.2d at 1115 (noting that the majority of jurisdictions still apply the Frye foundation and citing numerous cases utilizing Frye to analyze HGN tests). One court stated that the HGN test
rests on scientific premises well beyond [the officer’s] knowledge, training, or education. Without some understanding of the processes by which alcohol ingestion produces nystagmus, how strong the correlation is, how other possible causes might be masked, what margin of error has been shown in statistical survey, and a host of other relevant factors, [the officer’s] opinion on causation, notwithstanding his ability to recognize the symptom, was unfounded.
Id. at 1115-16 (citation omitted). Thus, officers who do not have a scientific background to adequately explain nystagmus causation should not be allowed to testify to its causation; rather, they should have their testimony limited to observations only.
[¶ 27.] Clearly, “the party seeking to admit the results of the HGN test [should be] required to establish the foundation for admission of scientific evidence.... ” Commonwealth v. Apollo, 412 Pa. Super. 453, 603 A.2d 1023, 1026 (1992) (holding trial court did not abuse its discretion by precluding admission of HGN evidence). Unless the arresting officers or other individuals who administer the HGN test possess the appropriate training, knowledge and experience, they should not be allowed to testify about administration of the test. And, unless a witness is properly educated on the science of HGN, he should not testify about the physiology of the test. Finally, because of the discrepancies concerning the accuracy of the test, I do not believe HGN tests should be used to prove a particular blood alcohol content. See O’Key, 899 P.2d at 681 (stating HGN tests are not admissible to prove a person has a blood alcohol content of .08 or more); Williams v. State, 710 So.2d 24 (Fla.Dist.Ct.App.1998) (holding HGN alone cannot be used to prove blood alcohol content of .08%).
[¶ 28.] For the foregoing reasons, I would hold a blanket acceptance of HGN testimony by the officer administering the test goes too far. The officer’s testimony should be limited to his observations as made when giving the test pursuant to his training.