Wednesday, October 10, 2007
By Andy Kravetz
Gatehouse News Service
PEORIA – The appeal of a Peoria County drunken driving conviction could determine whether prosecutors can pull a commonly used field sobriety test out of their arsenal at trial.
The Illinois Supreme Court recently found Peoria County Judge Jerelyn Maher improperly allowed the results of a horizontal gaze nystagmus (HGN) test to be used at trial four years ago without first holding a hearing as to whether the test was based on sound science.
The test is based upon the premise that if a person had been drinking, his or her pupils would not follow a pen or a finger smoothly.
The unanimous Sept. 20 decision stopped short of throwing out Joanne McKown's conviction but sent her case back to Peoria County for a hearing where experts on both sides will testify as to whether the HGN test passes scientific muster.
HGN tests have been used for years and are considered a good indication of whether a person is drunk, but often they are accompanied by other field sobriety results or chemical tests. McKown's case, however, appeared to use the HGN test almost exclusively to find that she was intoxicated on June 8, 2002, when her car collided with three motorcycles on Maher Road.
A hearing will be scheduled within 90 days, and a judge – either Maher or another one – will decide if the test is "generally accepted as a reliable indicator of alcohol impairment." Regardless of the decision, the matter goes back to the state Supreme Court, which will have the final say.
The high court's ruling could settle the dispute once and for all in Illinois.
"I am tickled to death not only for my client, but now we get to try to help all defendants in the state of Illinois," said McKown's attorney, Michael Rickgauer. "It is a great feeling from a defense lawyer's standpoint because we are settling something that makes a difference to hundreds of peoples' lives each year."
The attorney said the test's methodology is subjective because there is no way to quantify the results and it's based upon a police officer's observations. McKown, 43, whose hometown is listed as Hanna City according to court records, was convicted of aggravated driving under the influence and aggravated reckless driving at a 2003 bench trial and sentenced to two years in prison.
After the incident, a witness testified he smelled beer on her breath. The investigating officer also testified he smelled beer and said he found a half-empty beer can in her car. McKown, who was taken to the hospital after the crash, told him she drank beer earlier that day.
The officer did the HGN test at the hospital not long after the accident, and McKown failed. He did no other field sobriety tests because she had a broken toe. A blood test wasn't done for several hours because she resisted until she was court ordered to give blood. When it was done, the test showed no alcohol in her system.
The appellate court upheld McKown's conviction, saying "HGN testing is generally accepted in the scientific community as a reliable indicator of alcohol impairment."
Yet the Supreme Court disagreed, saying the test differed from others given because the results to the average person were meaningless, whereas the effect of alcohol on a person's balance was easily understood. Given that, the HGN test was considered scientific and therefore, held to a higher standard.
Steve Oberman of Knoxville, Tenn., chairs the DUI defense committee for the National Association of Criminal Defense Lawyers. A similar decision in Tennessee resulted in prosecutors using the test less frequently. When it is used, prosecutors often have a few more legal loops to jump through to have the results admitted.
"This particular test does require expertise," he said. "It's not something that one can just observe."