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.