dissenting:
The defendant, Linda Basler, was convicted of driving under the influence based in part on the arresting officer’s testimony that defendant failed the horizontal-gaze-nystagmus (HGN) test. An officer who administers an HGN test asks the driver to cover one eye and focus the other on an object, such as a pen, held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward the ear, the officer watches the driver’s eyeball to detect involuntary jerking. This jerking may indicate that the driver’s blood-alcohol content exceeds the legal limit. See People v. Buening, 229 Ill. App. 3d 538, 539-40 (1992).
In an unpublished order, the Fifth District of the appellate court reversed defendant’s conviction. The appellate court concluded that the trial judge erred in summarily denying a motion for a continuance which had been filed by defendant. According to the appellate court, the trial judge should have inquired into defendant’s circumstances and determined whether the motion was merely an attempt to delay trial.
Defendant subsequently filed a petition for rehearing before the appellate court. In this petition, defendant asked the appellate court to consider additional claims she had raised on appeal, including a claim that the circuit court should not have received evidence of the HGN test without first conducting a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Frye requires that novel scientific evidence be generally accepted in the relevant scientific community before it may be admitted at trial. People v. Miller, 173 Ill. 2d 167, 187-88 (1996). The appellate court thereafter issued a published opinion in which it reiterated its prior conclusions and stated that defendant’s petition for rehearing was denied. Nevertheless, in the published opinion, the appellate court addressed the merits of defendant’s argument regarding the use of HGN testing and the Frye standard.
Addressing the Frye issue, the court noted that the Fifth District of the appellate court concluded, in People v. Buening, 229 Ill. App. 3d 538 (1992), that HGN testing is generally accepted in the relevant scientific community and that such testing is admissible when a proper foundation is laid. However, in People v. Kirk, 289 Ill. App. 3d 326 (1997), the Fourth District disagreed with Buening and criticized its analysis regarding general acceptance. In particular, the Kirk court disagreed with Buening’s heavy reliance upon a judicial decision from Arizona (State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986) (en banc)) which concluded that HGN testing meets the Frye standard. Kirk noted that relying exclusively upon prior judicial decisions to establish general scientific acceptance can be a “ ‘hollow ritual’ ” if the underlying issue of scientific acceptance has not been adequately litigated. Kirk, 289 Ill. App. 3d at 333, quoting 1 J. Strong, McCormick on Evidence § 203, at 870 n.20 (4th ed. 1992). Kirk concluded that the question of scientific acceptance had not been “fully and thoroughly litigated” (Kirk, 289 Ill. App. 3d at 334) in Buening or in State v. Superior Court. Kirk expressed no opinion on whether HGN testing met the Frye standard. Instead, the court held that the general scientific acceptance of HGN testing had not yet been established as a matter of law.
The appellate court in the instant matter stated that it agreed “with Kirk that relying on other courts’ opinions to conclude that the HGN test meets the Frye standard may cause problems.” 304 Ill. App. 3d 230, 234. The court then stated: “[W]e suggest to the trial court that if there is a retrial and the State wishes to introduce evidence of the HGN test results, a Frye hearing might well be appropriate.” 304 Ill. App. 3d at 234. The court reversed defendant’s convictions and remanded the matter to the trial court.
On appeal to this court, the State challenges the appellate court’s handling of the Frye issue. The State argues that the appellate court’s decision to address the Frye issue upon denial of defendant’s petition for rehearing denied the State the opportunity to respond to defendant’s arguments. In addition, according to the State, the appellate court’s decision is confusing because it does not expressly follow either Kirk or Buening and does not state whether a Frye hearing is, in fact, required on remand. The defendant, in turn, asks that this court rule upon whether HGN testing meets the Frye standard.
A plurality of this court (Chief Justice Harrison, Justice Miller, and Justice Rathje) agrees with the State that the appellate court should not have addressed the Frye issue upon denial of defendant’s petition for rehearing. The plurality does not believe, however, that the appellate court should have avoided the issue because the State was not allowed to respond to defendant’s arguments in the petition for rehearing. Instead, the plurality concludes that, because the Frye issue was not raised in the trial court, there was a “lack of pertinent evidence” before the appellate court and, therefore, “the appellate court could not possibly make a definitive ruling on the matter.” 193 Ill. 2d at 550. The plurality also expressly declines to decide on the ultimate question as to “whether HGN test results should ever be admitted in prosecutions for driving under the influence.” 193 Ill. 2d at 549. According to the plurality, because no Frye hearing was held in the circuit court, “the record is devoid of the evidentiary material necessary to assess defendant’s challenge. Such material cannot be presented to an appellate court in the first instance. We are not triers of fact. Our function is to serve as a court of review. Accordingly, even if we wanted to take up the matter, we would have no informed basis for doing so.” 193 Ill. 2d at 549.
The plurality then goes on to state that the appellate court’s Frye analysis “is flawed for another, more fundamental reason.” 193 Ill. 2d at 550. The plurality notes that the appellate court in Buening held that HGN testing satisfies the Frye standard and that this decision was followed in People v. Wiebler, 266 Ill. App. 3d 336 (1994). The plurality concludes that, based upon these appellate decisions, HGN testing is “no longer ‘novel’ in any meaningful sense,” that HGN testing “has been shown to be generally accepted” and that “the State should not be put to the burden of having to reestablish the test’s validity in every case.” 193 Ill. 2d at 551. Therefore, according to the plurality, the appellate court in Kirk was wrong when it held that the general scientific acceptance of HGN testing has not been legally established. The plurality states that it would overrule Kirk and states that the appellate court in the instant matter was wrong to suggest that a Frye hearing might be required.
There are several serious problems with the plurality opinion. The most glaring is that the opinion contains a large internal contradiction. .The plurality states the following:
“In responding to the State’s arguments, defendant goes beyond the points raised by the State and invites our court to use this matter as a vehicle for considering whether HGN test results should ever be admitted in prosecutions for driving under the influence. This we decline to do. The problem with undertaking such an expansive analysis is that validity of the HGN test was never challenged in the trial court. Defense counsel raised no objection to the admission of the HGN test results against defendant, and use of the HGN test results was not contested by defendant in her post-trial motion.” (Emphasis added.) 193 Ill. 2d at 549.
From these statements it appears that the plurality will not decide whether HGN testing meets the Frye standard but, instead, will leave that question to another day.
However, the plurality then goes on to expressly endorse the holdings of Buening and Wiebler:
“[T]he State should not be put to the burden of having to reestablish the [HGN] test’s validity in every case. [Citation.] Where, as here, a scientific method has been shown to be generally accepted, a Frye test is no longer necessary each time the State seeks to use evidence obtained by that method.” (Emphasis added.) 193 Ill. 2d at 551.
Thus, at the outset of its analysis, the plurality unequivocally states that it expresses no opinion on whether HGN testing meets the Frye standard. Yet, incredibly, only a few paragraphs later, the plurality states that HGN testing meets the Frye standard. The plurality opinion “obfuscates the law and offers no clear guidance.” 193 111. 2d at 550. The plurality does a disservice to the bar and to this court with this type of analysis.
There are other problems with the plurality’s analysis in addition to the contradiction noted above. Recall that the appellate court in Kirk disagreed with Buening’s heavy reliance upon a single judicial opinion to conclude that HGN testing meets the Frye standard. Recall too the holding of the court in Kirk, i.e., that it could not resolve whether HGN testing meets the Frye standard because the issue had not been “fully and thoroughly litigated” in the circuit court. This holding is precisely the same conclusion reached at the outset of the plurality’s analysis. The plurality states that the appellate court in this case should not have addressed the Frye issue because it was not litigated in the circuit court and, therefore, there was a “lack of pertinent evidence” by which it could be resolved. Moreover, according to the plurality, this court cannot address the Frye issue because “the record is devoid of the evidentiary material necessary to assess defendant’s challenge.” 193 Ill. 2d at 549.
Given that the plurality apparently agrees with Kirk’s analysis, why does the plurality state that it would overrule that decision? Further, why does the plurality agree with Buening when that court apparently did not rely upon “evidentiary material[s]” (193 Ill. 2d at 549) in reaching its conclusion that HGN testing meets the Frye standard? Is the plurality saying that the Frye issue was fully and adequately litigated in Buening even though it appears that the court relied exclusively upon judicial opinions rather than testimony adduced in the circuit court to establish the general acceptance of HGN testing? The plurality obviously approves of Buening. Yet, if the procedure to establish general acceptance followed by the appellate court in Buening was proper, i.e., relying upon judicial opinions, then why does the plurality hold that this court cannot resolve the Frye issue because of a lack of factual findings in the record? The plurality’s failure to address these issues only engenders confusion.
The plurality states that it overrules Kirk because, before Kirk addressed the Frye issue, Buening and Wiebler concluded that HGN testing meets the Frye standard. Therefore, according to the plurality, HGN testing was no longer “novel” scientific evidence when the issue reached the Kirk court and that court should have simply taken judicial notice that the issue had been resolved. In essence, the plurality determines that once any district of the appellate court concludes that scientific evidence passes the Frye test, that district and every other district are bound by the first decision. There is no authority for such a result. The cases the plurality cites in support of this holding (see 193 Ill. 2d at 551) state only that trial courts acted correctly in relying on appellate case law. Certainly the districts of the appellate court may follow each others’ decisions, but they are not required to do so. The plurality mistakenly equates being generally accepted in the legal community with being generally accepted in the scientific community (the standard for the Frye test). Scientific evidence may be “generally accepted” in the legal community once a district of the appellate court has determined that it passes the Frye test, but this is not a guarantee that the initial decision was correct. It is patently erroneous to bar subsequent appellate panels from requiring a Frye hearing if they question the original decision.
Instead of following the confusing and contradictory path taken by the plurality, I would simply address the issue initially presented by the State. The State argues that it was unfair for the appellate court to address the Frye issue after receiving defendant’s petition for rehearing because the State was not allowed to respond to that petition. However, our rules only require the appellate court to allow the opposing party to respond when the court allows a petition for rehearing. 155 Ill. 2d R. 367(d). In this case, the court did not allow the petition for rehearing; rather, it modified its disposition upon denial of rehearing (and changed the disposition from an unpublished Rule 23 order to a published opinion). Accordingly, the appellate court was not required to allow the State to respond.
This result does not subvert the purpose of our rules. If the opponent of the initial petition is unhappy with the disposition as modified upon denial of rehearing, the opponent may file its own petition for rehearing. Our rules only bar subsequent petitions for rehearing after the appellate court has granted a petition for rehearing. 155 Ill. 2d R. 367(e). Thus if the State was dissatisfied with the appellate court’s disposition it could have filed its own petition for rehearing, which in fact it did in this case. This allowed the State to make any and all arguments it could have made in responding to the defendant’s original petition for rehearing.
It is true that the appellate court’s resolution of the Frye issue is confusing. As the plurality notes, the appellate court neither explicitly overrules Buening nor expressly adopts Kirk, and does not clearly state whether a Frye hearing must be held on remand. I would hold, therefore, that the cause should be remanded to the appellate court for the limited purpose of clarifying its holding.
Finally, it is important to emphasize that the issue of whether HGN testing meets the Frye standard has not been resolved by the opinions issued by this court in the case at bar. The reasoning and result of Kirk have not been overruled by this court, just as the reasoning and result of Buening have not been affirmed. See 193 Ill. 2d at 551 (Heiple, J., specially concurring, joined by Bilandic, J.).
JUSTICE FREEMAN joins in this dissent.