Supreme Court Summaries

Opinions filed February 19, 2010

No. 102372     People v. McKown

Appellate citation: No. 3-04-0433 (unpublished order under Supreme Court Rul 23).

      JUSTICE GARMAN delivered the judgment of the court, with opinion.

      Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

      In 2002 in Peoria County, three motorcyclists were thrown from their bikes when a speeding car driven by this defendant veered into oncoming traffic. Two of the cyclists suffered serious injuries. In bench trial proceedings, Joanne McKown was convicted for two counts of aggravated driving under the influence of alcohol and also of other offenses. The evidence against her had consisted of the testimony of three eyewitnesses and of the arresting officer, who performed a field sobriety test known as the HGN test. This evaluation measures eye movements. It was administered to the defendant in the hospital to which she was taken immediately after the accident. At trial, the officer testified that the defendant failed the test and that he had concluded she was impaired by alcohol. The defendant objected to the admission of the HGN evidence, contending that this scientific test is not generally accepted in the scientific community and that a hearing as to whether or not it is (known as a Frye hearing) should be held before the HGN evidence could be admitted. No Frye hearing had ever been held in Illinois as to the HGN test up to that time. The trial court ruled that no Frye hearing was necessary and the defendant was convicted. The appellate court was of the same view and affirmed.

      When the cause reached the supreme court, that reviewing body concluded that a Frye hearing should indeed be conducted and, retaining jurisdiction, remanded the cause in 2007 to the circuit court for that purpose, with directions to report back. Those results are now before the supreme court for review.

      The only issue which McKown preserved for review before the supreme court was the necessity for a Frye hearing, which was awarded and has now taken place. The circuit court determined that the HGN test is, in fact, generally accepted in the scientific community as evidence of alcohol consumption and possible impairment. In this decision, the supreme court adopted the trial court’s findings.

      However, for HGN results to be admitted in a particular case, a proper foundation must be laid showing that the test was correctly administered by one qualified to do so. At the hearing on remand, the defendant’s offer of proof indicated that the test was not, in fact, appropriately performed. Although this issue was not specifically included in the defendant’s petition for leave to appeal to the supreme court, the court found it “inextricably intertwined” and addressed it, holding that no proper foundation had been laid and that the officer’s testimony as to HGN test results was, thus, improperly admitted.

      The conviction was reversed and a new trial ordered at which the officer could testify as to his observations other than the HGN test. If a proper foundation could be laid for the test performed by him, his testimony concerning it would be admissible on retrial. There is no double jeopardy bar to a retrial.