People v. Kirk

NO. 4-95-0574

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JAMES D. KIRK, ) No. 951668
Defendant-Appellant. )
) Honorable
) Donald D. Bernardi,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Defendant James D. Kirk was charged with driving under
the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West
1994)) and improper lane usage for driving the wrong direction on
a one-way road (625 ILCS 5/11-708 (West 1994)). Following a jury
trial, defendant was convicted on both counts. Defendant ap-
peals, arguing that it was error for the trial court to allow
certain scientific testimony without conducting a Frye hearing.
See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We
agree a Frye hearing should have been conducted but hold that any
error was harmless.
The evidence established that defendant watched the
second half of the Super Bowl at his son's Bloomington home.
Defendant arrived at the house during halftime and did not appear
to be impaired. He remained at the home for a couple of hours,
through the second half. During this time, defendant and his son
drank some beer from a 12-pack and ate some snacks. Defendant
testified he consumed three or four beers "at the most."
Defendant's daughter-in-law, Joyce Kirk, testified there was
still beer left in the 12-pack when defendant left her home, but
she did not know how may beers actually remained. She did not
think defendant was impaired when he left and testified his walk
and speech were no different than usual. Joyce also stated that
defendant walks with a limp because he has bad knees.
Defendant, who does not live in Bloomington, testified
that when visiting his son he will generally only travel the
Bloomington roads he was driving at the time of his arrest.
Defendant testified that after leaving his son's house, he
decided to visit his other son. He then decided it was too late
to do so and turned on Oakland Avenue to head east. As he
approached Lee Street and saw the traffic lights, defendant
realized he was driving the wrong way on a one-way street. He
made a right turn when he got to McArthur and was stopped shortly
thereafter.
Officer Darrin Woodin saw defendant driving the wrong
way on Oakland Avenue. He watched defendant drive 300 to 400
feet before he turned off Oakland Avenue and onto Madison Street.
Woodin did not see defendant violate any other traffic laws prior
to the stop. Woodin smelled alcohol as he approached defendant's
vehicle. Woodin believed the smell of alcohol emanated from
defendant and not defendant's car because the smell became
stronger when defendant spoke. Woodin described defendant's
speech as being sometimes clear and sometimes "drift[ing] off
into a mumble that was almost unintelligible." Woodin asked
defendant to take the field-sobriety tests.
Woodin first administered the horizontal gaze nystagmus
(HGN) test. This test involves testing a suspect's eye movement
in an effort to determine intoxication. Based upon the HGN test,
Woodin believed defendant to be intoxicated. Woodin then asked
defendant to "recite the alphabet from E through N." According
to Woodin, defendant skipped the letters "H" and "I" and contin-
ued through the letter "Z." Woodin said defendant drifted "in
and out of the slurred speech."
Woodin demonstrated, then asked defendant to perform,
the finger-to-nose test. Defendant reportedly refused to take
the test, stating that it was "impossible." Woodin did not ask
defendant to perform either the walk-and-turn test or the one-
leg-stand test. Woodin explained that, in light of defendant's
bad knees, he did not think the tests would be fair. Based upon
the tests and his observations of defendant's movements, Woodin
was of the opinion that defendant was impaired. Woodin also
testified that, in response to questions, defendant said he had
been at a bar and that he had consumed a few drinks. Woodin's
police report made no mention of defendant's statement that he
had been at a bar. Defendant denied stating that he had been at
a bar. Woodin noticed three to five empty beer cans in the
backseat of defendant's car. Defendant testified he had picked
these cans up for recycling.
Defendant was arrested for DUI. After being read the
motorist warning, defendant refused to take the breathalyzer.
Woodin testified defendant said he would not pass the test
anyway. At trial, defendant explained that he did not trust the
machine, that he had heard several people talk about the test and
he did not believe anyone ever passed the test. Defendant was
found guilty and appeals.
Defendant raises only one argument upon appeal, that it
was improper for the trial court to allow Woodin's testimony
concerning the HGN test. Defendant argues the HGN test is based
upon scientific principles and that an Illinois court has yet to
properly determine whether the HGN test is generally accepted
within the scientific community.
Nystagmus, a physiological phenomenon, is a term used
to describe an involuntary jerking of the eyeball. People v.
Buening, 229 Ill. App. 3d 538, 539, 592 N.E.2d 1222, 1223 (1992);
see also Webster's Tenth New Collegiate Dictionary 800 (1996) ("a
rapid involuntary oscillation of the eyeballs"). Nystagmus can
be congenital or it may be caused by "'a variety of conditions
affecting the brain, including ingestion of drugs such as alcohol
and barbiturates, palsy of lateral or vertical gaze, disorders of
the vestibular apparatus and brainstem and cerebellar dysfunc-
tion.'" (Emphasis omitted.) Buening, 229 Ill. App. 3d at 539,
592 N.E.2d at 1223, quoting The Merck Manual of Diagnosis and
Therapy 1980 (14th ed. 1982); see also Schultz v. State, 106 Md.
App. 145, 180-81, 664 A.2d 60, 77 (1995) (listing 38 possible
causes of nystagmus in addition to alcohol consumption). The HGN
test, as routinely performed by law enforcement officers, con-
sists of:
"'the driver [being] asked to cover one eye
and focus the other on an object (usually a
pen) held by the officer at the driver's eye
level. As the officer moves the object grad-
ually out of the driver's field of vision
toward his ear, he watches the driver's eye-
ball to detect involuntary jerking. The test
is repeated with the other eye. By observing
(1) the inability of each eye to track move-
ment smoothly, (2) pronounced nystagmus at
maximum deviation[,] and (3) onset of the
nystagmus at an angle less than 45 degrees in
relation to the center point, the officer can
estimate whether the driver's blood[-]alcohol
content (BAC) exceeds the legal limit of
[0.10].'" Buening, 229 Ill. App. 3d at 539-
40, 592 N.E.2d at 1223, quoting State v.
Superior Court, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986) (en banc) (hereinafter
Blake).
In Buening, the defendant filed a motion in limine seeking to
exclude the results of his HGN test. The trial court granted the
motion, and the State, after filing a certificate of impairment,
appealed. The Buening court reviewed Illinois case law concern-
ing the admissibility of HGN test results as well as the case law
of other states. Relying upon Blake as "one of the more exten-
sively researched and well-reasoned decisions on the subject"
(Buening, 229 Ill. App. 3d at 541, 592 N.E.2d at 1225), the court
concluded that HGN testing meets the Frye standard (see Frye, 293 F. 1013; People v. Baynes, 88 Ill. 2d 225, 430 N.E.2d 1070
(1981)) and that "HGN test results are admissible, as is any
other evidence of a defendant's behavior, to prove that the
defendant is under the influence of alcohol, provided a proper
foundation has been laid" (Buening, 229 Ill. App. 3d at 546, 592
N.E.2d at 1227-28). Buening, a fifth district opinion, has been
followed by the third district in People v. Wiebler, 266 Ill.
App. 3d 336, 640 N.E.2d 24 (1994).
This court addressed HGN testing in People v. Vega, 145
Ill. App. 3d 996, 496 N.E.2d 501 (1986), a DUI case in which the
trial court admitted evidence that the defendant had failed the
test. The entire foundation for the test's admission was the
testimony of the police officer explaining the procedure of the
test. There was no testimony about either the officer's training
in the administration of the test or the scientific validity of
the test. This court noted that when evidence "beyond the
general knowledge of the average individual is sought to be
introduced, a proper foundation by way of expert testimony is
required. This becomes especially true of technological evi-
dence. It is a natural inclination of jurors to regard such
evidence as extremely trustworthy." Vega, 145 Ill. App. 3d at
1000, 496 N.E.2d at 504. Perhaps recognizing that a Frye hearing
should have been conducted in the trial court, both parties in
Vega submitted materials to this court in support of their
position as to the validity (or invalidity) of the HGN test.
Those materials had not been presented to the trial court.
Determining that the foundation presented at trial was insuffi-
cient to admit the HGN test evidence, we declined to follow Blake
and declined the opportunity to rule upon the validity and
admissibility of the HGN test: "That decision must await another
day and another case. Exhibits or attachments to appellate
briefs, not seen by the trial court, are improper." Vega, 145
Ill. App. 3d at 1001, 496 N.E.2d at 505. When read as a whole,
Vega stands for the proposition that the HGN test evidence should
not have been admitted in the absence of a finding that it met
the Frye standard. Vega was followed by the second district in
People v. Smith, 182 Ill. App. 3d 1062, 538 N.E.2d 1268 (1989).
In People v. Hood, 265 Ill. App. 3d 232, 638 N.E.2d 264
(1994), this court was faced with the question whether the
results of an HGN test were admissible in an implied-consent
proceeding. This court first noted that neither Vega nor Buening
dealt with the issue then before the court, statutory summary
suspension of drivers' licenses. This court then said:
"As the fifth district determined the
HGN test was sufficiently reliable to meet
the Frye standard for admissibility in crimi-
nal proceedings, we are persuaded it is suf-
ficiently reliable to be admitted in implied-
consent proceedings; thus, where evidence
involving the HGN test is sought to be admit-
ted in implied-consent proceedings, the State
need not call an expert witness to attest to
its reliability. Accordingly, the circuit
court properly overruled Hood's objection
based on lack of scientific reliability."
Hood, 265 Ill. App. 3d at 245-46, 638 N.E.2d
at 274.
See also People v. Rose, 268 Ill. App. 3d 174, 181, 643 N.E.2d 865, 870 (1994) ("Generally, field-sobriety tests are admissible
not only in proceedings to determine whether probable cause ex-
isted, but also in criminal proceedings to prove intoxication.
(See People v. Buening (1992), 229 Ill. App. 3d 538, 592 N.E.2d 1222 ([HGN] test)"). This case presents the specific issue, not
involved in Hood and Rose, of whether it is necessary to conduct
a Frye hearing prior to the admission of the result of a HGN test
in a criminal trial for DUI. We conclude that a Frye hearing is
necessary.
The Buening court relied primarily upon the Blake
decision in reaching its conclusion. In Blake, the defendant
made pretrial motions (1) to dismiss the prosecution for lack of
probable cause to arrest, and (2) to preclude the admission of
HGN evidence at her upcoming DUI trial. The trial court conduct-
ed an evidentiary hearing, at which the prosecution presented
four witnesses. The first was Dr. Marcelline Burns, a research
psychologist who studied the effect of alcohol on behavior.
Burns testified the HGN test, when used in conjunction with walk-
and-turn and one-leg-stand tests, resulted in 83% accuracy in
determining BAC above and below 0.10. Blake, 149 Ariz. at 271,
718 P.2d at 173. Burns also testified "the HGN test had been
accepted as valid by the highway safety field, including the
[National Highway Traffic Safety Administration (NHTSA)], Finnish
researchers, state agencies such as the California Highway
Patrol, Arizona Highway Patrol, Washington State Police, and
numerous city agencies." Blake, 149 Ariz. at 272, 718 P.2d at
174. The other three witnesses were police officers. Their
testimony suggested that the HGN test is between 80% and 90%
accurate, and that it is particularly "useful in detecting
violations where a driver with [a] BAC over 0.10 is able to pull
himself together sufficiently to pass the traditional field[-]
sobriety tests and thus avoid arrest and subsequent chemical
testing." Blake, 149 Ariz. at 272, 718 P.2d at 174. The trial
court concluded that the HGN test represented a new scientific
principle subject to the Frye standard of admissibility, that the
test did not satisfy Frye, and therefore could not form the basis
of probable cause. Blake, 149 Ariz. at 272, 718 P.2d at 174.
The appellate court reversed, noting that the Frye standard
applied only to the admissibility of evidence at trial, not to
probable cause for arrest, and that the HGN test was sufficiently
reliable to form the basis of probable cause. Alternately, the
appellate court found the HGN test did satisfy the Frye standard.
Blake, 149 Ariz. at 272-73, 718 P.2d at 174-75.
The Arizona Supreme Court noted the "HGN test is a
different type of test from balancing on one leg or walking a
straight line because it rests almost entirely upon an assertion
of scientific legitimacy rather than a basis of common knowl-
edge." Blake, 149 Ariz. at 276, 718 P.2d at 178. The court con-
cluded the Frye standard applied. Blake, 149 Ariz. at 277, 718 P.2d at 179. The court then determined that, before the HGN test
could be found to satisfy the Frye rule, it would have to be
shown that the HGN test was generally accepted in four different
disciplines: "behavioral psychology, highway safety and, to a
lesser extent, neurology and criminalistics." Blake, 149 Ariz.
at 278, 718 P.2d at 180. (Unlike other tests employed in court,
such as deoxyribonucleic acid (DNA), it appears that HGN is not
used by anyone except police officers.) Based upon its own re-
search as well as articles submitted by the prosecution, the
Arizona Supreme Court concluded the HGN test satisfied the Frye
standard. Accordingly, the court held that, "with [the] proper
foundation as to the techniques used and the officer's ability to
use it [citation], testimony of defendant's nystagmus is admissi-
ble on the issue of a defendant's blood[-]alcohol level as would
be other field[-]sobriety test results." Blake, 149 Ariz. at
279, 718 P.2d at 181.
There are several ways a proponent of evidence subject
to Frye can prove the "general acceptance" of the proffered evi-
dence. The proponent may use scientific publications, prior
judicial decisions, practical applications, as well as the
testimony of scientists as to the attitudes of their fellow
scientists. See 1 J. Strong, McCormick on Evidence 203, at 870
(4th ed. 1992) (and cases cited therein) (hereinafter McCormick).
At least a couple of courts have taken judicial notice of general
acceptance where the published indications of general acceptance
are unequivocal and undisputed. McCormick 203, at 870 n.22.
Blake appears to rely upon this method, at least to some extent.
While it may be proper for a trial court to take judicial notice
of numerous articles, we believe it is improper for this court to
decide the validity or acceptance of a scientific test on such a
basis.
We agree with Buening and Blake in at least one re-
spect: HGN evidence is scientific evidence that must meet the
Frye standard before it is admissible. This seems to be the
majority view. See Schultz, 106 Md. App. at 158-60, 664 A.2d at
66-67 (and cases cited therein). In the absence of a Frye
hearing in the instant case, however, we decline to follow the
Buening conclusion that HGN evidence is admissible. The Buening
court relied heavily upon the opinions of other courts, including
Blake. Perhaps the Buening court relied upon other evidence, but
we cannot tell whether it did so from the opinion.
The other cases relied upon in Buening in turn relied
upon Blake. Four of the cases were from courts that did not deem
Frye applicable to the HGN test. See Howard v. State, 744 S.W.2d 640 (Tex. Crim. App. 1987); State v. Bresson, 51 Ohio St. 3d 123,
554 N.E.2d 1330 (1990); State v. Nagel, 30 Ohio App. 3d 80, 506 N.E.2d 285 (1986); State v. Murphy, 451 N.W.2d 154 (Iowa 1990).
Of the remaining cases, none of the appellate courts had the
benefit of a Frye hearing. Rather, those courts concluded that
the Frye standard had been met due to the Blake court's conclu-
sion. See State v. Garrett, 119 Idaho 878, 881, 811 P.2d 488,
491 (1991) (finding that HGN evidence satisfies Frye standard
because it had not been provided with authority that "refutes the
reasoned decision of [Blake]"); State v. Armstrong, 561 So. 2d 883 (La. App. 1990); State v. Clark, 234 Mont. 222, 762 P.2d 853
(1988).
Reliance upon other courts' opinions can be problemat-
ic: "Unless the question of general acceptance has been thor-
oughly and thoughtfully litigated in the previous cases, ***
reliance on judicial practice is a hollow ritual." McCormick
203, at 870 n.20. For example, McCormick cites Glover v. State,
787 S.W.2d 544 (Tex. Crim. App. 1990), as a case where the court
held that DNA fingerprinting enjoys general acceptance following
a hearing in which defendant produced no expert testimony. In
reaching its decision, the Glover court relied upon other cases
in which no defense experts were available. McCormick 203, at
870 n.20. "'[J]udicial notice could become a yellow brick road
for judicial acceptance of bogus or at least unvalidated scien-
tific theories or techniques.'" McCormick 203, at 870 n.20,
quoting J. Starrs, Frye v. United States Restructured and Revi-
talized: A Proposal to Amend Federal Evidence Rule 702, 115 F.R.D. 92, 97 (1987). The State's evidence in Blake consisted of
four witnesses: one research psychologist and three police offi-
cers. The defendant did not present any evidence. The Blake
court relied upon its own research of relevant articles. While
the Blake defendant "won" the Frye hearing at the trial court
level, that decision was reversed by the appellate court. Blake
is questionable authority for the proposition that the HGN test
meets the Frye standard in Illinois courts.
The expert retained by the prosecution in Blake, Dr.
Burns, was the individual who conducted the study that led to the
NHTSA's adoption of the HGN test. Police departments, in turn,
have adopted the NHTSA's recommendations. In Blake, Dr. Burns
supported the proposition that the HGN test is accepted and reli-
able, in part, by relying upon the NHTSA's manual and the fact
that the test is used by different police departments. By doing
so, however, she in essence referred back to her own conclusions,
magnifying the opportunity for error. We do not say that Dr.
Burns' conclusions on the subject are flawed, only that the issue
has not been fully and thoroughly litigated. The proper place
for this litigation is in the trial court, and it was error to
admit the HGN test evidence without a proper Frye hearing.
The dissent cites a recent decision, Zimmerman v.
State, No. 130 1996 (Del. April 2, 1997) (1997 WL 158121). In
Zimmerman, the Delaware Supreme Court reversed a decision admit-
ting HGN evidence because the trial court had not conducted
Delaware's equivalent of a Frye hearing. That reversal is
consistent with our holding, that because of the conflict in the
decisions the trial court should not simply choose a decision of
some other jurisdiction to follow, but should actually review the
scientific testimony on both sides in a Frye hearing. Zimmerman
noted that State v. Ruthardt, 680 A.2d 349 (Del. Super. 1996),
decided after the case sub judice, conducted a Frye hearing, and
Zimmerman agreed with Ruthardt but the subsequent decision did
not justify affirmance in the case before it. Zimmerman, slip
op. at 3, 4 n.18. Ruthardt recognized there is some opposition
to the HGN test both within the scientific community and among
the courts, there are several scientific articles published
subsequent to the Blake case that insist that the HGN test has
not gained general acceptance within the scientific community,
and several articles maintain that the research procedures in the
NHTSA studies are suspect. Ruthardt, 680 A.2d at 359. The
dissent cites State v. Taylor, No. CUM-95-706 (Me. April 18,
1997) (1997 WL 200304), but that decision also relies heavily on
the Blake case and the questioned NHTSA studies.
The State argues that any error was harmless. We
agree. While defendant may have had valid objections to both the
walk-and-turn and one-leg-stand tests, Woodin did not require
defendant to take these tests. Defendant has offered no valid
explanation for his failure to take the finger-to-nose test. He
simply stated that the test was impossible, even after Woodin
demonstrated the test. Defendant's only explanation for his
refusal to submit to the breath test was because he had heard
that no one ever passed it. Defendant's explanation that hay
fever and dentures caused his slurred speech were self-serving at
best. Defendant failed the alphabet test. While we believe the
admission of the HGN test was error, we believe it was harmless
error in light of the other evidence of defendant's guilt.
For the foregoing reasons, the judgment of the trial
court is affirmed.
Affirmed.

McCULLOUGH, J., concurs.

STEIGMANN, P.J., specially concurs. PRESIDING JUSTICE STEIGMANN, specially concurring:
Although I concur in the majority's decision to affirm
defendant's conviction, I disagree with the majority's conclusion
that the trial court erred by admitting the HGN test.
To reach that conclusion, the majority had to reject
the fifth district's decision in Buening that "HGN test results
are admissible, as is any other evidence of a defendant's behav-
ior, to prove that the defendant is under the influence of
alcohol, provided a proper foundation had been laid." Buening,
229 Ill. App. 3d at 546, 592 N.E.2d at 1227-28. I disagree with
the majority's rejection of Buening because, in my opinion, it is
a thoughtful, well-reasoned decision. Further, although the
majority concedes that the third district has also decided to
follow Buening (see Wiebler, 266 Ill. App. 3d at 339, 640 N.E.2d
at 27), the majority apparently finds Wiebler insufficiently
persuasive as well.
An important reason for the majority's rejection of
Buening (and Blake, which Buening cited as persuasive) appears to
be that those courts took judicial notice of various published
articles in reaching their conclusions. The majority holds as
follows: "While it may be proper for a trial court to take
judicial notice of numerous articles, we believe it is improper
for this court to decide the validity or acceptance of a scien-
tific test on such a basis." Slip op. at 11. The majority cites
no authority to support this assertion, and I believe none
exists.
 "Judicial notice, adjudicative and leg-
islative, may also be taken by any court of
appellate jurisdiction even if the taking of
judicial notice was refused by the trial
court or not requested below. 735 ILCS 5/8-
1002; May Department Stores v. Teamsters
Union Local #743, 64 Ill. 2d 153, 355 N.E.2d 7 (1976); In re Ersch's Estate, 29 Ill. 2d 576, 195 N.E.2d 149 (1964); Lubershane v.
Village of Glencoe, 63 Ill. App. 3d 874, 20
Ill. Dec. 681, 380 N.E.2d 890 (1978). Howev-
er, an appellate court will not take judicial
notice of evidentiary material not presented
below that is critical to a proper determina-
tion of the issues between the parties.
Vulcan Materials Co. v. Bee Constr., 96 Ill. 2d 159, 70 Ill. Dec. 465, 449 N.E.2d 812
(1983)." M. Graham, Cleary & Graham's Hand-
book of Illinois Evidence 201.1, at 53 (6th
ed. 1994).
The exception discussed in the last sentence does not apply to
resolving the validity of HGN testing under Frye.
This court should accept the statement of Buening that
trial courts need not conduct future Frye hearings regarding the
admissibility of HGN tests. On two recent occasions, this court
has similarly concluded that Frye hearings are not necessary
regarding scientific subjects--namely, DNA testing in general and
certain methodologies of that testing in particular. In People
v. Lipscomb, 215 Ill. App. 3d 413, 432, 574 N.E.2d 1345, 1357
(1991), this court held that DNA identification procedures are
"generally accepted within the particular scientific fields
involved" and are admissible. In People v. Pope, 284 Ill. App.
3d 695, 703, 672 N.E.2d 1321, 1327 (1996), this court held that
the polymerase chain reaction based method of DNA typing was "now
generally accepted in the relevant scientific communities in-
volved, and trial courts need not conduct future Frye hearings on
this issue." Although it is true that we had more extensive
trial court records to review in both Lipscomb and Pope than did
the fifth district in Buening, I nonetheless am satisfied that
the decision reached in Buening was correct.
The majority's decision will have serious consequences.
Prosecutors in the medium-sized counties of this state file
hundreds of DUI charges annually, and dozens of those ultimately
go to trial. Because of this volume, and because these cases
almost always constitute misdemeanors, precise dates for trial--
often necessary to obtain expert witnesses to come to court to
testify--are difficult to obtain. These logistical concerns,
coupled with the expense of providing expert testimony for
misdemeanor cases, will combine to force prosecutors to forego
the use of HGN tests, thus thwarting the truth-seeking purposes
of trials. And all this for reasons that other courts nationwide
have rejected.
One of the most recent courts to address this issue is
the Supreme Court of Delaware. In Zimmerman (No. 130 1996, slip
op. at 3 n.11), that court cited approvingly an earlier decision
of the Delaware Superior Court in Ruthardt, to the effect that,
"[w]hen establishing a foundation for HGN tests, future cases are
not required to establish that the HGN test is reasonably relied
upon by experts." The Ruthardt court, in concluding that experts
view HGN evidence as reasonably reliable, explained, in part, as
follows:
"The bulk of the scientific research indi-
cates that the potential error rate of a
properly administered HGN test is lower than
all field[-]sobriety tests that are routinely
admitted into evidence. Moreover, most of
the studies, scientific articles, state court
decisions[,] and other literature on the
subject that this Court has reviewed estab-
lish that the test is a reliable tool if
properly administered. In fact, recent cases
on HGN evidence reveal that the law has pro-
gressed beyond the issue of admissibility
towards an emphasis on defining foundation
requirements and the qualification[s] of
those who administer the test." Ruthardt,
680 A.2d at 360.
In Taylor (No. CUM-95-706, slip op. at 4), the Supreme
Court of Maine also addressed the scientific reliability of HGN
tests and wrote the following:
 "The scientific studies, law review articles,
and other literature on the subject of HGN
testing, as well as the case law, demonstrate
that the HGN test is reliable if an officer
properly administers it. We are persuaded by
these authorities and conclude that the re-
sults of the HGN test should be admissible if
a proper foundation is laid for their intro-
duction in evidence. A proper foundation
shall consist of evidence that the officer or
administrator of the HGN test is trained in
the procedure and the test was properly ad-
ministered."
Like the Supreme Courts of Delaware and Maine, we too
should be "progress[ing] beyond the issue of admissibility"
(Ruthardt, 680 A.2d at 360) and defining foundation requirements.
The majority's decision constitutes a step backward.