Case Study 1

Overview — Based on: People v. Gordon, 379 Ill. App. 3d 626, 2007 Ill. App. LEXIS 1371 (2007) and partially based on State v. Popeleski, 291 Conn. 769, 2009 LEXIS 114 (2009).

Following a bench trial, the trial judge convicted defendant Gordon for driving under the influence of alcohol (DUI), along with several automobile-related felonies. He appealed the convictions and sentences, contending that the prosecution did not prove guilt beyond reasonable doubt and that a horizontal gaze nystagmus (HGN) sobriety test had not been properly administered and therefore should not have been admitted in evidence against him at his bench trial. Pursuant to a radio call from his dispatcher reporting an impaired driver, police officer, Officer Panizo encountered the defendant in an automobile stopped at a traffic light. The defendant refused the officer’s order to exit the car and drove away, obeying the speed limit and traffic signals as indicated. With the assistance of a backup officer, the defendant’s vehicle was cornered, and the defendant was dragged from the driver position when he refused to exit the car. Officer Panizo noticed that the defendant’s eyes were bloodshot and watery, that he had a strong odor of alcohol about him, that he swayed back and forth when he tried to walk toward the squad car, and that his speech was mumbled when he talked to the officers. Officer Panizo then noticed empty beer cans on the floor of the defendant’s car. Officer Panizo then took the defendant to the Skokie police station and performed an HGN test.

As a general rule, state courts admit evidence of the horizontal gaze nystagmus test when it has been properly administered by a trained officer who can understand the results and he or she testifies concerning those results in open court. One Connecticut enunciated a three-part test that must be satisfied before HGN evidence is admissible. That test requires that the state (1) satisfy the criteria for admission of scientific evidence, (2) lay a proper foundation with regard to the qualifications of the individual administering the test, and (3) demonstrate that the test was conducted in accordance with relevant procedures. In addition, the Connecticut court concluded that because the HGN evidence satisfied the requirements for admissibility of scientific evidence, as a general rule, the results are admissible. Trial courts in Connecticut are not required to hold a hearing concerning the scientific theoretical basis of the HGN test in every case in which HGN evidence is offered. However, the state still must lay a proper foundation with regard to the qualifications of the individual administering the test and demonstrate that the test was conducted in accordance with generally accepted standards. See State v. Popeleski, 291 Conn. 769, 2009 LEXIS 114 (2009).

In this case, Officer Panizo testified that he had administered the HGN test around 30 times after receiving hands-on training on the proper method to follow when administering the test in the field. He indicated that the test requires that the suspect focus on a stimulus, usually a pen, positioned 12 to 15 inches in front of the suspect’s face. The process then involves moving the stimulus pen in different directions within the suspect’s range of vision and having the suspect following the pen’s movement with his or her eyes. The object of this test is to detect nystagmus, or jerking of the eyes, and whether the eyes track equally. A suspect is regarded as failing the test if he or she receives a score of four or more decision points, which are nystagmus or jerking points. The defendant objected to the scientific validity of the HGN test and suggested that a Frye v. United States (1923) hearing was necessary prior to admitting the test results (see Chapter 15, Section 15.1) and that judicial notice should not have been taken concerning the validity of the HGN test (see Chapter 5, Judicial Notice, Section 5.7).

The defendant scored six decision points and refused to take any additional field sobriety tests. Officer Panizo testified that he had observed between 50 and 100 people who were under the influence of alcohol and that he had made between 10 and 15 arrests for driving under the influence of alcohol. The officer noted that the defendant’s appearance, speech, conduct, and the odor of alcoholic beverages indicated that he could be intoxicated. Based on the physical factors, the above HGN test, and the officer’s experience with impaired individuals, the officer determined that probable cause existed to arrest the defendant for driving under the influence of alcohol.

Defendant Gordon contended that the HGN test results should not have been admitted in the absence of a Frye hearing; that the evidence indicated that he violated no traffic law; and that there was not sufficient evidence to prove him guilty beyond a reasonable doubt.