—I respectfully dissent. I do not join the majority in its conclusion that a horizontal gaze nystagmus (HGN) test administered as a field sobriety test by a police officer is based on a “novel scientific principle” and may not be relied on by an experienced police officer in support of a conclusion that a suspect is intoxicated unless it is shown to meet the Kelly/Frye criteria. (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 F. 1013 [54 App.D.C. 46, 34 A.L.R. 145.) Assuming that conclusion is true, however, it does not follow that the trial court erred in admitting the opinion of Officer Van Achen and his reasons for reaching that opinion.
The majority hold that this conviction should be reversed without regard to, or even mention of, the Evidence Code provision that governs the admission of the testimony of Officer Von Achen that, in his opinion, defendant was under the influence of alcohol while driving an automobile. Evidence Code section 803 mandates exclusion of opinion evidence “based in whole or in significant part on matter that is not a proper basis for such an opinion.” The testimony of Officer Von Achen was not based wholly or in significant part on the results of the HGN test. His observation of defendant’s reaction to that test was only one of several equally or more informative factors which led him to the conclusion that defendant was intoxicated.
Further, as a threshold issue, it is doubtful that evidence of an officer’s observations of a suspect’s response to the HGN field sobriety test is properly described as scientific evidence. If those observations are scientific evidence because the test is one used in the medical profession, however, there is no reason that the opinion of a trained officer that those observations, with others, may not be relied on by a police officer in support of an opinion that a suspect is intoxicated. That opinion is admissible without subjecting all of the factors which support it to the former KellylFrye test. *614While members of the medical profession believe that the test is an accurate indicator of intoxication, and thus the test may be termed “scientific” for that reason, administration and interpretation of the results of the test do not involve application of the type of scientific procedure and analysis to which the KellylFrye test should be applied.
In short, moving a finger in front of a suspect’s eyes and observing the reaction of the eyeballs is something a trained police officer can do in the field. One need not be a rocket scientist to be able to observe and assess the reaction of the suspect. If a police officer is able to administer other field sobriety tests and offer an opinion based on the suspect’s performance that the suspect is intoxicated, he can also be trained to administer the HGN test and should be able to testify that, based on his observations and experience, persons who perform as the suspect did on those tests are intoxicated.
The majority’s reason for concluding that an officer’s observations of the reaction of a person to whom the officer has administered the HGN test should be equated with sophisticated scientific techniques such as DNA testing, homologous lucocytic antibodies (HLA) typing, or other scientific procedures to which the KellylFrye requirements have been applied in the past, does not withstand examination.
Moreover, assuming that an HGN field sobriety test is a scientific procedure, I do not agree that evidence regarding the test is admissible only if the Kelly-Frye criteria are met. Section 28, subdivision (d) of article I of the California Constitution (section 28(d))1 mandates admission of evidence which the Kelly-Frye test excludes. The majority offer no persuasive reason for retaining a procedure which makes admissibility of concededly relevant evidence turn on the opinion of a segment of the scientific community. The result is contrary to the command of section 28(d), and the reason—easing the burden on trial judges to decide hard questions—is constitutionally impermissible.
Implicit in the majority opinion is a conclusion that California trial judges are less competent than judges of the federal court to determine the admissibility of scientific evidence. State judges, they hold, should not be called *615upon to determine whether scientific evidence is sufficiently reliable to be relevant and thus admissible in the courts of this state. No matter that it is the responsibility of a judge to make such decisions or that the California Constitution mandates that all relevant evidence be admitted in criminal cases. Because our judges should not be called upon to make hard decisions, they must abdicate their responsibility and leave the decision to a “consensus” of the scientific community. Whatever justification there once was for such a rule, that justification evaporated when section 28(d) was added to article I of the Constitution.
I
Is Evidence Based in Part on the HGN Test Subject to Kelly/Frye?
A. Nature of the Evidence.
To put the issues in this case in their proper perspective, one must know what evidence was offered at defendant’s trial and the basis of the trial court’s order overruling defendant’s objection to admission of the evidence about the HGN test administered to defendant.
Officer Michael Von Achen of the Huntington Beach Police Department was the arresting officer. He testified regarding the symptoms of intoxication he had observed before deciding to place defendant under arrest. Defendant’s reaction to the HGN test was only one of those symptoms. Officer Von Achen did not testify that this test alone established that a person was under the influence of alcohol, or that the test could establish the percentage of blood alcohol.
Von Achen was not a novice in the field of driving under the influence (DUI) arrests. He had more than nine years of experience, before which he had attended four and one-half months of police academy training. That training included the procedure for administration of field sobriety tests and observation of a suspect’s reactions to the tests. The tests included a “walk-the-line” test, a “one-leg balance” test, and a “finger-to-nose” test. The training had been followed by supervised field experience in which drunk driving arrests were emphasized. Von Achen had also received training on how to administer the HGN test and had received 15 additional hours of training in DUI investigation.
During Von Achen’s nine and one-half years as a police officer, he had stopped “thousands” of suspected drunk drivers, of whom approximately five hundred to six hundred had then been arrested. In determining whether *616a driver is under the influence of alcohol, Von Achen considered the HGN test reaction important because, if it appeared from that test that a person was probably not under the influence, he would release the person without doing the other tests. He did not form an opinion that the person was under the influence on the basis of the reaction to the HGN test alone. His training and experience taught him, however, that if a person is highly intoxicated, the eyes will not be able to follow the finger on a smooth track, but will constantly be catching up to it in a “jerking” motion. If Von Achen found that response to be present, he would administer additional tests.
Von Achen stopped defendant’s car after he observed the car make a turn onto Pacific Coast Highway at a fairly fast rate of speed and then drift across to the center and accelerate quickly. The car was traveling 55 miles per hour in a 25-mile-per-hour construction zone. He noticed that defendant’s eyes were very red and watery and his face flushed. Defendant’s speech was thick and slurred. Defendant said he had had two beers. His balance was unsteady when he stepped out of the car.
After questioning defendant about when he had last eaten, slept, or had anything to drink and whether he had any illness or had used medication or drugs, and defendant explained that he had just had a cast removed from a leg in which he had pulled ligaments, Von Achen noticed the odor of alcohol on defendant’s breath and person. He then attempted to have defendant perform a field sobriety test, the “modified attention” test. Defendant attempted to do that test which involves putting heels and toes together, hands down at the sides, head back with the back arched a little bit, and eyes closed. In that position he was to estimate thirty seconds and then open his eyes. Defendant swayed from front to back two to three inches and opened his eyes after thirty-seven seconds.
Von Achen then administered the HGN test. He observed that defendant was not following his finger smoothly. At that point he formed the opinion that defendant was under the influence of alcohol. He then administered the “ABC” test. Defendant recited the alphabet correctly but in thick and slurred speech. Von Achen did not administer other field sobriety tests because defendant had had an injury to his leg.
Von Achen formed his opinion that defendant had been driving under the influence of alcohol on the basis of the appearance of his eyes and face, the manner in which he was driving, his response to the questions he was asked, his thick and slurred speech, as well as his observations of defendant’s performance on the tests administered to defendant.
*617B. The Kelly/Frye test.
Next, an understanding of the evidence to which the Kelly/Frye rule has been applied and the reasons for the rule is essential. First, and most importantly, the Kelly/Frye rule applies only to expert opinion testimony. In California the admission of expert testimony is governed by statute. (Evid. Code, §§ 801-805.) Experts are allowed to testify regarding matters that are beyond the competence of the jury. The opinion will be helpful, however, only if it is validly drawn from appropriate data. (Mendez, Cal. Evidence (1993) p. 316.) Evidence Code section 801 establishes the criteria for admission of expert opinion testimony. “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
“(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
The expert is permitted to state the reasons for his opinion and the factors on which it is based. (Evid. Code, § 802.) If the opinion is “based in whole or in significant part” on matters that are not a proper basis for the opinion, the court may exclude the testimony unless the expert can state an opinion after excluding the improper matter. (Evid. Code, § 803.)
In Frye v. United States, supra, 293 F. 1013, from which this state’s Kelly/Frye rule is derived, the court was called upon to determine the admissibility of expert testimony that is based on a new scientific technique. The test in question was a “systolic blood pressure deception test,” which might be described now as a form of lie detection test. It was based on a theory that systolic blood pressure rises when a subject experiences fear, rage, or pain, and that because a person who consciously lies or conceals facts about, or guilt of, crime fears detection when under examination, there will be a rise in blood pressure corresponding to the extent of the subject’s fear and attempt to control that fear. The defendant in a murder prosecution had offered an expert to testify to the result of this test. The trial court sustained the prosecutor’s objection and excluded the evidence.
The circuit court upheld the ruling after holding that expert testimony on a scientific principle or discovery is admissible only when it has “crosse[d] *618the line between the experimental and demonstrable stages .... Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (293 F. at p. 1014.)
Notwithstanding the appellation “Kelly/Frye,” this court approved the Frye formulation 10 years before the Kelly decision. In Huntingdon v. Crowley (1966) 64 Cal.2d 647 [51 Cal.Rptr. 254, 414 P.2d 382], it was applied to new techniques for blood typing. The court held that the trial court had correctly followed the rule stated in Frye, saying: “This is also the rule in California. (See, e.g., People v. Jones (1959) 52 Cal.2d 636, 653 [343 P.2d 577] [‘truth serum’]; People v. Carter (1957) 48 Cal.2d 737, 752 [312 P.2d 665] [‘lie detector’ test]; cf. People v. Williams (1958) 164 Cal.App.2d Supp. 858, 860-862 [331 P.2d 251] [‘Nalline’ test].)” (64 Cal.2d at p. 654.)
In People v. Kelly, supra, 17 Cal.3d 24, this court reaffirmed its approval of the Frye test as applied to the admissibility of evidence of a “new and emerging technique of speaker identification by spectrographic analysis, commonly described as ‘voiceprint.’ ” (Id., at pp. 27-28.)
None of the “scientific” tests or methods at issue in those cases is in any way comparable to the HGN test as administered by a police officer in the field. The test results and expert opinion based on them were aptly described by the court in People v. Williams (1958) 164 Cal.App.2d Supp. 858, 860-861 [331 P.2d 251], quoting Wigmore: ‘When the testimony thus appearing to the ordinary layperson to lack a rational basis is founded on observations made with esoteric methods or apparatus ... the method should be explained by the witness, and if it be vouched for as accepted in his branch of learning, it suffices to admit his testimony.’ Wigmore on Evidence, third edition, section 659.”
Here, there is no esoteric method or apparatus. A layperson serving on the jury can readily comprehend the nature of the test and there is no mystery to the means by which the results are evaluated when a police officer testifies based on his training and experience that the subject’s reaction indicated that the subject was intoxicated. The answer might be different if the officer purported to be able to determine the blood-alcohol level of the suspect on the basis of an HGN test (see People v. Ojeda (1990) 225 Cal.App.3d 404, 409 [275 Cal.Rptr. 472]; People v. Loomis (1984) 156 Cal.App.3d Supp. 1, 6 [203 Cal.Rptr. 767]), but there is nothing in the manner in which a simple *619description of a subject’s reaction to the HGN is relayed to a jury that carries an “undeserved aura of certainty.” (People v. Stoll (1989) 49 Cal.3d 1136, 1156 [265 Cal.Rptr. Ill, 783 P.2d 698].) In Stoll, this court emphasized the limited applicability of the Kelly/Frye test. “Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law. . . . [*]□ The second theme in cases applying Kelly/Frye is that the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury. The most obvious examples are machines or procedures which analyze physical data. Lay minds might easily, but erroneously, assume that such procedures are objective and infallible.” (Ibid.) “[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye.” (Id., at p. 1157.)
We concluded in People v. Stoll, supra, 49 Cal.3d 1136, 1157, that the expert psychological testimony offered in that case “raises none of the concerns addressed by Kelly/Frye. The methods employed are not new to psychology or the law, and they carry no misleading aura of scientific infallibility.” (Italics omitted.) The same may be said for the HGN test as administered by a police officer in the field as one indicator of possible intoxication. The test is not new. It has been in use since the 1960’s and was described in medical literature in 1958. (Malone v. City of Silverhill (Ala.Crim.App. 1989) 575 So.2d 101, 103, revd. on other grounds, 575 So.2d (Ala. 1990); Aschan, Different Types of Alcohol Nystagmus (Sweden 1958) 140 Acta Otolaryngol Supp. 69.) It is recommended by the National Highway Traffic Safety Administration to aid in determining if a driver is intoxicated. (City of Fargo v. McLaughlin (N.D. 1994) 512 N.W.2d 700, 703.) Under a contract from the National Highway Traffic Safety Administration to develop the best possible field sobriety tests, Dr. Marcelline Bums of the Southern California Research Institute concluded that the HGN test is the best single index of intoxication. (State v. Superior Court (1986) 149 Ariz. 269 [718 P.2d 171, 173].)
The majority conclude that we should nonetheless deem the HGN test to be new and wait even longer for the scientific community to do further research and achieve a consensus. To the majority the “long-standing use by police officers seems less significant a factor than repeated use, study, testing and confirmation by scientists or trained technicians.” (Maj. opn., ante, at p. 606.) I disagree. There is no reason to believe that after 30 years the scientific community has any interest in further studies of HGN. For laboratory purposes there are other more accurate tests of blood-alcohol level. The HGN phenomenon was once of interest, but unless it has practical *620use outside of field sobriety testing by law enforcement, the majority assumption that further testing will be done by the scientific community seems unfounded.
More importantly, however, the long-standing use by police officers is extremely significant because that is the “laboratory” in which the correlation between HGN and blood-alcohol level has been established. The majority ignore the fact that when an arrest for DUI is made on the basis of field sobriety tests, a blood, breath, or urine test follows. The correlation between DUI arrests in which the HGN reaction was observed by the officer who determined that the suspect was under the influence of alcohol and a subsequent breath, blood, or urine confirmation that the suspect’s blood-alcohol level exceeds the legal limit is the only testing that should be necessary.
I see no distinction with respect to their complexity, sophistication or scientific “aura” between the HGN test and other field sobriety tests administered to persons suspected of DUI violations. The majority conclude that the HGN test is a scientific procedure in part because the “jury might be unduly swayed by HGN evidence solely by reason of its technical nomenclature.” (Maj. opn., ante, at p. 607.) If so, the name can be changed. Certainly the majority does not mean to hold that the name of a procedure determines whether it is a scientific test subject to the KellylFrye requirements. There is no relevant scientific community available to reach a consensus on a nonscientific matter simply because the name of the procedure sounds impressively scientific.
If the HGN test had originated with law enforcement officers rather than the scientific community, and was named simply the “follow the finger test,” and an officer testified that in the officer’s experience a person under the influence of alcohol or drugs has difficulty in smoothly following a moving finger with his eyes, we would not have this question before us at all. Even if the scientific community does not agree as to the reliability of an HGN test for determining blood-alcohol levels, a police officer who has administered the test many times and has observed a correlation between subsequent tests for blood-alcohol level and the HGN test results is certainly able to testify, based on his experience, that a jerky movement of the eyeballs when the test is administered is a symptom of intoxication. A jury would have no difficulty in comprehending the nature of the test. Indeed, we allow lay opinion testimony regarding both drug and alcohol intoxication because laypersons are sufficiently familiar with the symptoms that they are able to identify them. A layperson may not be aware that the jerking eyeball movement is another symptom, but he or she can easily comprehend the nature of the *621police officer’s inquiry when the test is described. As used in the field by a police officer, this test is not a new scientific technique surrounded by a “ ‘misleading aura of certainty’ ” and jurors are not likely to give it “considerable weight” as scientific evidence presented by “ ‘experts’ with impressive credentials.” (People v. Kelly, supra, 17 Cal.3d 24, 31-32.) “The gaze nystagmus test, as do the other commonly used field sobriety tests, requires only the personal observation of the officer administering it. It is objective in nature and does not require expert interpretation. Objective manifestations of insobriety, personally observed by the officer, are always relevant where, as here, the defendant’s physical condition is in issue.” (State v. Nagel (1986) 30 Ohio App.3d 80 [506 N.E.2d 285, 286].)
The Supreme Court of Minnesota recently held that the HGN test does meet the Frye criteria, but also noted that it is not a new test. It distinguished the question of whether the test itself is a reliable indicator of the presence of drugs from the question of whether an officer may testify regarding an opinion formed on the basis of administration of that test and others to a suspect. (State v. Klawitter (Minn. 1994) 518 N.W.2d 577.)
The court held that the evidence had been properly admitted even though there was not a consensus as to its utility in determining drug impairment because the HGN test was only one element of a twelve-step protocol supportive of a conclusion based on the entire protocol that drug impairment was present. The arresting officer had testified regarding the factors in the protocol that led him to the opinion that the defendant was under the influence of cannabis. The defendant had challenged the reliability of the protocol, but the trial court ruled that the officer could testify concerning the observations made during the protocol and his opinion based on those observations.
The Minnesota Supreme Court upheld the trial court’s ruling. It reasoned: “[P]roperly viewed, the protocol ... is not itself a scientific technique but rather a list of the things a prudent, trained, and experienced officer should consider before formulating or expressing an opinion whether the subject is under the influence of some controlled substance. [ID ... [H Only the tests for horizontal and vertical nystagmus and for convergence are out of the ordinary, but they can hardly be characterized as emerging scientific techniques. Nystagmus and convergence have long been known, and the tests contemplated by the protocol have been in common medical use without change for many years. The tests are simple and do not require the use of complicated equipment. . . . HD • . • [DD • • . It is not contended, however, that the presence or absence of nystagmus is determinative of the presence of drugs, but only that nystagmus, when it is present, may be an element *622supportive of a conclusion of drug impairment based on the elements of the protocol, taken as a whole. . . .
“The other point of the defense challenge goes to the police officer’s competence to draw conclusions based on the protocol. Basically, however, following the protocol does not involve any significant scientific skill or training on the part of the officer. Drug recognition training is not designed to qualify police officers as scientists but to train officers as observers. The training is intended to refine and enhance the skill of acute observation which is the hallmark of any good police officer and to focus that power of observation in a particular situation. . . . [T]he protocol . . . dresses in scientific garb that which is not particularly scientific. . . . Moreover, calling the officer an ‘Expert’ [is misleading and] tends to lend weight to the officer’s opinion. [U . . . The real issue is not the admissibility of the evidence but the weight it should receive, and that is a matter for the jury to decide without being led to believe that the evidence is entitled to greater weight than it deserves. . . . [W]e conclude that opinion testimony based on nystagmus testing is admissible if a sufficient foundation has been laid for the opinion expressed and provided that the trial court, when requested, gives an appropriate cautionary instruction.” (518 N.W.2d at pp. 584-586, fhs. omitted.)
The Minnesota high court is not alone in concluding that use of a suspect’s reaction to the HGN test as an indicator of intoxication is not use of a scientific test subject to the Frye criteria as it is no more scientific than other field sobriety tests. (Whitson v. State (1993) 314 Ark. 458 [863 S.W.2d 794, 798]; State v. Edman (Iowa 1990) 452 N.W.2d 169, 170; State v. Murphy (Iowa 1990) 451 N.W.2d 154, 157; State v. Garris (La.Ct.App. 1992) 603 So.2d 277, 282; State v. Nagel, supra, 30 Ohio App.3d 80 [506 N.E.2d 285, 286]; State v. Sullivan (S.C. 1993) 426 S.E.2d 766, 769.) Most recently the North Dakota Supreme Court, in City of Fargo v. McLaughlin, supra, 512 N.W.2d 700, reviewed the scientific literature and cases and concluded that expert testimony regarding HGN is not necessary.
“We begin our analysis by noting that the underlying scientific basis for HGN testing—that intoxicated persons exhibit nystagmus—is undisputed, even by those cases and authorities holding the test inadmissible without scientific proof in each case. State v. Superior Court, 718 P.2d at 177, 181; State v. Witte [(1992) 251 Kan. 313] 836 P.2d at 1112; State v. Garrett [(1991)] [119 Idaho 878] 811 P.2d at 491; State v. Cissne [(1994) 72 Wn.App. 667], 865 P.2d 566; Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. P.O.F.3d 439, 446 (1989). It is generally accepted that a person will show a greater degree of nystagmus at higher levels of *623intoxication, and that a properly conducted HGN test can identify nystagmus. See State v. Superior Court, 718 P.2d at 181; State v. Witte, 836 P.2d at 1112-1113. We take notice of these physiological facts, and conclude that it is unnecessary to require expert testimony of these widely accepted principles.
“These principles comprise the only ‘scientific’ components of the HGN test. The officer, based upon his training in these principles, observes the objective physical manifestations of intoxication, and no expert interpretation is required. State v. Murphy, 451 N.W.2d at 157; State v. Nagel, 506 N.E.2d at 286. The test requires simply that the officer observe the subject’s eyes following a moving object.” (City of Fargo v. McLaughlin, supra, 512 N.W.2d at p. 706.)
The North Dakota high court also relied on the view of the Idaho Supreme Court in State v. Gleason (1992) 119 Idaho 878 [844 P.2d 691, 695], which it quoted (512 N.W.2d at p. 707): “[The officer’s] testimony relating to the HGN test results was not offered as independent scientifically sound evidence of [the defendant’s] intoxication. Rather, it was offered and admitted for the same purpose as other field sobriety test evidence—a physical act on the part of [the defendant] observed by the officer contributing to the cumulative portrait of [the defendant] intimating intoxication in the officer’s opinion. ['ID In sum, we agree with those cases that stress that HGN test results are admissible in conjunction with other field sobriety tests. [Citations.] Where the officer has conducted other field sobriety tests in addition to the HGN test, the results of the HGN test are but one of the physical observations to support the officer’s opinion that the accused was intoxicated.”
The Supreme Court of Arkansas has reached the same conclusion. No Frye-type hearing is necessary both because it is not a novel scientific procedure and because evidence of an officer’s observations of a subject’s reaction to the test is not scientific evidence to which the Frye test is applicable: “HGN testing has been in existence for 35 years and officers are trained in this technique at the State Police Academy. . . . [T]he results of nystagmus testing for purposes of showing some indication of alcohol was not novel scientific evidence requiring a preliminary inquiry. Our opinion, however, might well be different had the officer attempted to quantify blood alcohol content based solely on the HGN test. [<¡0 In sum, we hold that the results of the HGN test were relevant to show alcohol consumption in conjunction with the results of other field sobriety tests performed.” (Whitson v. State, supra, 863 S.W.2d 794, 798.)
There is simply no reason to restrict testimony such as that given in this case on the basis that the police officer’s opinion was based on scientific *624evidence that did not satisfy the Kelly/Frye test. That test should not be applied. 2 The trial court did not apply it3 and we should not.
Officer Von Achen did not testify that the HGN test established that defendant had alcohol or any specific percentage of alcohol in his system at the time of arrest. He testified that defendant’s reaction to the test and the other factors described above led him to form the opinion that defendant had been driving under the influence of alcohol. I would affirm the judgment of the trial court for that reason alone.
II
Article I, Section 28(d)
An equally important reason why this judgment must be affirmed is that the Kelly/Frye rule excludes relevant evidence which this court does not *625have the power to render inadmissible by the perpetuation of a court-made rule of evidence.
The court has repeatedly recognized that Frye excludes relevant evidence. The court did so in People v. Kelly, supra, 17 Cal.3d 24, 30-31, and again in People v. Stoll, supra, 49 Cal.3d 1136, 1156. Yet section 28(d) commands: “[RJelevant evidence shall not be excluded in any criminal proceeding.” The intent of the electorate when this provision was added to the Constitution by initiative in 1982 was to overturn judicially created exclusionary rules which keep relevant evidence from the trier of fact. (People v. Harris (1989) 47 Cal.3d 1047, 1081-1082 [255 Cal.Rptr. 352, 767 P.2d 619]; In re Lance W. (1985) 37 Cal.3d 873, 888-889 [210 Cal.Rptr. 631, 694 P.2d 744].)
The majority hold that what will now be simply “Kelly” continues to be an appropriate means to ensure that evidence is sufficiently reliable to be admissible under Evidence Code section 350.4 The majority concede that the California Evidence Code provisions governing opinion testimony are sufficiently broad that they might be interpreted to permit admission of evidence that does not meet the Kelly/Frye standard. They “presume,” however, that the court was aware of that possible breadth when Kelly was decided and nonetheless concluded that the Frye test of admissibility was compatible with those provisions. (Maj. opn., ante, at p. 599.)
It is, of course, necessary to engage in that presumption since the Kelly opinion does not address the question. The majority fail to note or acknowledge that Kelly is not the decision in which the Frye test was adopted. Indeed, the Kelly opinion itself states: “We have expressly adopted the foregoing Frye test .... (Huntingdon v. Crowley (1966) 64 Cal.2d 647, 653-654 . . . .)” (Kelly, supra, 17 Cal.3d 24, 30.) Huntingdon v. Crowley, supra, while decided in 1966, involved a claim of error in a pre-1965 trial, however, and itself relied on cases decided before the Evidence Code was adopted in 1965. (64 Cal.2d at p. 652, fn. 4.) Thus, this court has never actually or presumptively considered whether the Frye test is compatible with the Evidence Code provisions governing admission of expert testimony.
The majority assert, in support of adherence to the Frye, now Kelly, test, that there have been no significant developments since Kelly was decided to justify abandoning the Frye test. Therefore, the majority conclude, principles of stare decisis apply and the Frye, now Kelly, test is still to be applied *626regardless of whether, contrary to the command of section 28(d), the result is to exclude relevant evidence.
The electorate which adopted section 28(d) as part of Proposition 8, “The Victims’ Bill of Rights,” in 1982 may be surprised to learn that it was not a significant development or that a majority of this court does not regard it as such.5 I do. I believe it is incumbent on this court to reconsider the question of admissibility of expert scientific evidence in light of both the Evidence Code provisions and the command of section 28(d) that all relevant evidence be admitted unless barred by the federal Constitution or sections 352, 782, or 1103 of the Evidence Code.
While the Kelly/Frye test may be “appropriate,” it is overinclusive and thus is not permissible under section 28(d). The ramifications of the court’s holding today extend far beyond the erroneous application of Kelly to Officer Von Achen’s testimony in this case. It will cause the exclusion of relevant evidence based on new scientific discoveries, whether proffered by the defense or the prosecution, until a sufficient number of scientific experts in the field take enough interest in the subject to enable the party offering the evidence to satisfy a court that there is a consensus among experts in that field as to the reliability of the evidence. While the rule is lauded as promoting uniformity in the admission of evidence, that uniformity will be of no benefit to the defendant who is convicted and sentenced to death when probative and even crucial evidence is excluded because the scientific technique through which it was developed is “new” and, although the developer may be well respected in the field, the technique has not yet attracted enough attention to achieve a “consensus” among members of the “relevant” scientific community. That uniformity may also deny the prosecution the use of highly probative evidence of guilt in the absence of which a murderer may go free.
The majority’s lack of confidence in the ability of trial judges and juries to weigh the reliability of scientific evidence is doubly ironic because prosecutors themselves accept as dispositive reliable evidence that has not been held admissible under the Kelly/Frye criteria. DNA evidence, for instance, was recently accepted by the San Diego County District Attorney as proof of the innocence of a man convicted of rape and confined in prison for 10 years. (Perry, DNA Test Frees Inmate After 10 Years, L.A. Times (Sept. 29,1994) p. *627A-3, col. 2.) Under the rule perpetuated today by the majority, the election to rely on such evidence is a one-way street. Had the defendant offered that evidence at trial, and the prosecutor objected, the evidence would have been excluded unless the court concluded that it satisfied Kelly/Frye, and the defendant would have remained in prison awaiting the elusive consensus of the scientific community.
The Kelly/Frye test may exclude relevant evidence for many years after the new technique is developed even though a substantial body of experts agrees that the technique is reliable. That may happen here. Although the HGN test has been in use for 30 years, and the literature establishes that it is accepted as reliable by numerous experts whose qualifications to make that judgment are unimpeachable, other experts disagree. On remand, therefore, the trial court may exclude the evidence since the majority hold that the HGN test is still a new technique if the court concludes the test is not yet accepted as reliable by a “consensus” of experts.
Section 28(d) and the Evidence Code place no such limitation on the admissibility of evidence, however. Instead, Evidence Code section 351 mandates: “Except as otherwise provided by statute, all relevant evidence is admissible.” The only limitation on the admission of relevant evidence found in the Evidence Code, absent a specific exclusion (see, e.g., Evid. Code, §§351.1, 352.1, 900 et seq., 1100 et seq.) preserved by section 28(d)), is that the evidence be relevant (Evid. Code, § 350) and that its probative value not be substantially outweighed by a danger of undue prejudice or necessitate undue consumption of time. (Evid. Code, § 352.) The majority concede that the California statutory requirements governing admission of evidence mirror those of the federal government and acknowledge the conclusion of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. _ [125 L.Ed.2d 469, 113 S.Ct. 2786] that those statutes make relevancy the sole criterion for admission. Yet the majority nowhere explain the authority for their conclusion that this court may continue to order exclusion of relevant evidence because the evidence does not meet the Kelly/Frye criteria.
We look in vain for the source of such judicial power only to be referred back to the Kelly decision which, we are told, explains why the Frye approach to determining reliability of expert testimony about scientific techniques is appropriate. Unfortunately, Kelly offers no insight into the source of judicial power to exclude relevant evidence. In fact, Kelly acknowledges that the admission of evidence based on new scientific techniques could be left to the trial court “in which event objections, if any, to *628the reliability of the evidence (or of the underlying scientific techniques on which it is based) might lessen the weight of the evidence but would not necessarily prevent its admissibility.” (Kelly, supra, 17 Cal.3d 24, 31.) The court explained that the primary advantage, and its basis for mandating use, of the Frye test, was that it is “conservative.” {Ibid.)
Neither the Evidence Code nor section 28(d) empowers the court to exclude reliable evidence simply because it has not been generally accepted in the relevant scientific community. Assuming that evidence might be so unreliable as to pose a danger that its prejudicial impact might substantially outweigh its probative value, those provisions do not authorize the court to delegate its responsibility to determine admissibility of evidence under Evidence Code section 352 to a segment of the scientific community. Nor is the majority justified in their reliance on legislative silence to justify the continued exclusion of relevant evidence on the basis of Kelly. Section 28(d) mandates admission of all relevant evidence. In People v. May (1988) 44 Cal.3d 309, 320 [243 Cal.Rptr. 369, 748 P.2d 307], the author of the majority opinion himself recognized that it would “wholly frustrate this intent were we to hold that [a judicially created rule of evidence] survived merely because the Legislature had acknowledged the existence of judicial rules . . . .”
The command of section 28(d) could not be clearer. Section 28(d) has eliminated all judicially created exclusionary rules “to ensure that all relevant evidence be admitted. That purpose cannot be effectuated if the judiciary is free to adopt exclusionary rules that are not authorized by statute or mandated by the Constitution.” (In re Lance W., supra, 37 Cal.3d 873, 889.) It is both unnecessary and futile to search for evidence of an intent in the electorate to abrogate the Kelly/Frye test specifically.
Therefore, assuming that it was based on a new scientific procedure, the sole basis on which Officer Von Achen’s testimony could have been excluded in this case was if the HGN test or the testimony regarding its administration and outcome was perceived to be so unreliable that its probative value was substantially outweighed by its potential for prejudice. (Evid. Code, § 352.) That was not established by defendant and the majority does not suggest that the record would support exclusion on that basis.
Moreover, as noted earlier, even assuming that the officer’s opinion regarding defendant’s intoxication was based in part on the HGN test and those results were improper evidence, the opinion was admissible under *629Evidence Code section 803 since it was not based in significant part on the results of that test.6
I would reverse the judgment of the Court of Appeal.
All references to the Constitution are to the California Constitution.
Section 28(d) of article I states: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.” (Italics added.)
There is a substantial body of opinion in states which consider the HGN test to be a scientific test subject to Frye that its reliability has been established and the evidence of its results may be admitted without expert opinion to establish its reliability in each case. (See Emerson v. State (Tex.Crim.App. 1994) 880 S.W.2d 759; State v. Garrett (1991) 119 Idaho 878 [811 P.2d 488, 491]; People v. Buening (1992) 229 Ill.App.3d 538 [170 Ill.Dec. 542, 547-548, 592 N.E.2d 1222, 1227-1228]; State v. Armstrong (La.Ct.App. 1990) 561 So.2d 883, 887; State v. Bresson (1990) 51 Ohio St.3d 123 [554 N.E.2d 1330, 1334]; Anderson v. State (Tex.Ct.App. 1993) 866 S.W.2d 685, 686; Howard v. State (Tex.Ct.App. 1987) 744 S.W.2d 640, 641.)
For a comprehensive review of the literature regarding the HGN test see State v. Superior Court, supra, 718 P.2d 171. The Arizona Supreme Court concluded on the basis of that literature and evidence offered in that case that the HGN test is recognized as the most reliable of the roadside field sobriety tests. (Id., at pp. 173,177.) That court concluded that the test meets the Frye standard because: “The evidence demonstrates that the following propositions have gained general acceptance in the relevant scientific community: (1) HGN occurs in conjunction with alcohol consumption; (2) its onset and distinctness are correlated to BAG [blood-alcohol content]; (3) BAG in excess of .10 percent can be estimated with reasonable accuracy from the combination of the eye’s tracking ability, the angle of onset of nystagmus and the degree of nystagmus at maximum deviation; and (4) officers can be trained to observe these phenomena sufficiently to estimate accurately whether BAG is above or below .10 percent.” (Id., at p. 181.)
Prior to the admission of Officer Von Achen’s testimony in which he explained his reasons for his DUI opinion, defendant had moved under Evidence Code section 402 to exclude evidence regarding the HGN test on the ground that there was no scientific acceptance of the test under the Kelly/Frye criteria as a valid test for detecting the presence of alcohol in a person’s system. He also objected, relying on People v. Loomis, supra, 156 Cal.App.3d Supp. 1, and People v. Ojeda, supra, 225 Cal.App.3d 404, on the ground that the reliability of the testing method had not been shown in the scientific community. The trial judge overruled the objection, ruling that Kelly/Frye was inapplicable because the test was not a specific test for the determination of the presence of alcohol. That conclusion was correct as the officer testified only about a symptom of alcohol in the system just as he did when testifying about slurred speech, a red face, and bloodshot eyes.
One expert has criticized the court for “erroneously” assuming in People v. Harris, supra, 47 Cal.3d 1047, that unreliable evidence is not relevant evidence. (See Mendez, California Evidence, supra, at p. 322.)
Their surprise may be compounded since only two years ago we observed that the voters adopted Proposition 8, of which section 28(d) was a part, “to make significant substantive and procedural changes in California criminal law.” (People v. Wheeler (1992) 4 Cal.4th 284,291 [14 Cal.Rptr.2d 418, 841 P.2d 938].)
Of course, since they are not expressly exempted, the Evidence Code limitations on admission of expert testimony themselves may have been abrogated by section 28(d).