The Illinois Supreme Court, DUI, and HGN

Wheaton lawyer Don Ramsell posted the following comments to ISBA 's criminal law discussion group about the Illinois Supreme Court's ruling last Friday in People v. McKown (the Peoria Journal Star's account is here). "Good News [for DUI defense lawyers]: The Illinois Supreme Court ruled in favor of my client...and reversed her conviction, finding that the [horizontal gaze nystagmus] test that was not proven to be properly performed and therefore was wrongfully admitted into evidence! "The case also deals with the admissibility of HGN as proof of actual impairment under Frye v. United States. The court held that it does not prove actual impairment, and that it can be used only for the possibility of impairment; just like consumption of alcohol. "There are many good points for the defense in this case. For the first time in Illinois, the court limited the HGN as follows: 1.  The HGN cannot be portrayed as proof of actual impairment; 2.  The HGN cannot be used to establish an alcohol concentration, or to suggest greater than 0.08 3.  The HGN now requires strict compliance with NHTSA (no more cop saying "I don't know what NHTSA is, but I did it according to my training"....) 4. The court also stated that on a case-by-case basis, the trial court can rule that the admission of HGN is inadmissible on grounds of undue prejudice. 5. The court also stated that the cop must be properly trained under NHTSA protocol, which (in Illinois) most cops are not (they only get a 6-hour academy course rather than the 24-hour NHTSA course) 6.  The Supremes recited the states expert, and noted that HGN is not properly performed according to this expert while a subject is seated "There is a wealth of information in the 28 page opinion. The Supremes agreed with us that a 4 point 'failure' really only correlates to a BAC of .04-.06. The Supremes agreed with us that the resolution by the American Optometry Association...finding the HGN reliable is entitled to zero weight. The Supremes agreed with the defense and recited that there are over 125 causes related to HGN. It grants the defense the ability to use the NHTSA manual as an acknowledged standard, thus avoiding most of the State's objections to its use at trial. It gives the defendant so much cross-examination on HGN that we can impugn almost every cop who takes the stand. It quotes Dr. Henson who said that only 1 out of 100 cops can do it right. "Lastly, the court accepted our argument that it should throw out the HGN in the case itself. We did not get into this case until after the Supreme Court had originally heard it, and granted a special Frye hearing. It was only at that time that it was discovered that the cop didn't do the test correctly. The Supremes rejected the State's attempt to prevent us from raising that issue, and met it square on, and called it out of bounds!" This seems like a good time to mention that you can order ISBA's DUI and Traffic-Related Decisions book here.