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Docket No. 87770-Agenda 31-May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LINDA BASLER, Appellee.

Opinion filed November 16, 2000.

CHIEF JUSTICE HARRISON delivered the judgment of thecourt:

Following a jury trial in the circuit court of Jackson County,defendant, Linda Basler, was convicted of driving under theinfluence and sentenced to 12 months' probation. The appellatecourt reversed and remanded for a new trial. We granted theState's petition for leave to appeal. 177 Ill. 2d R. 315. For thereasons that follow, we now affirm the appellate court's judgmentas modified.

In October of 1996, defendant was arrested by police andcharged with driving under the influence of alcohol (625 ILCS5/11-501 (West 1996)). The circuit court appointed the JacksonCounty public defender to represent her. On the day of her trial,defendant requested a continuance to seek private counsel on thegrounds that she and her appointed attorney did not agree oncertain matters. Defendant also advised the court that she had beenill, that she did not feel capable of assisting in her defense, andthat some of her witnesses were not able to testify that day.

The circuit court denied defendant's motion, and the matterproceeded to trial before a jury. The jury returned a verdict ofguilty. The circuit court then sentenced defendant to 12 months'probation and fined her $300. The court also ordered defendant topay $5 per month for the services of the probation office and topay $25 for the services of her public defender.

Defendant filed a post-trial motion for a new trial, arguingthat the State had failed to prove its case beyond a reasonabledoubt. That motion was denied, and defendant appealed. Asgrounds for her appeal, defendant asserted that the circuit courtabused its discretion when it denied her motion for a continuancewithout making further inquiry into the circumstances involvedand without making a finding that she had brought the motion todelay trial. Defendant further contended, among other things, thatthe trial court should not have ordered her to pay a fee to thepublic defender's office without holding a hearing on her financialcircumstances and her ability to pay.

The appellate court reversed and remanded for a new trial inan unpublished order. No. 5-97-0979 (unpublished order underSupreme Court Rule 23). As grounds for its decision, the courtheld that the circuit court had committed reversible error when itrejected defendant's motion for a continuance without inquiringfurther into the circumstances or finding that she had presented themotion merely to delay the trial. The appellate court further heldthat the trial judge should not have required defendant to pay the$25 fee for her public defender without first holding a hearing onher ability to pay. In disposing of the case, the appellate courtdirected the circuit court to hold such a hearing on remand and toprovide a court reporter to memorialize that hearing.

Defendant petitioned for rehearing, asking the appellate courtto consider additional claims she had raised on appeal, includinga claim that the circuit court should not have received evidence ofthe results of a horizontal-gaze-nystagmus (HGN) test without firstconducting a hearing under Frye v. United States, 293 F. 1013(D.C. Cir. 1923). Although the appellate court purported to denydefendant's petition, it vacated its decision and filed a new,published opinion in its stead.

In its opinion, the court reiterated its prior holdings in thecase, but added a discussion regarding the Frye issue. 304 Ill. App.3d 230. The court noted that it had previously ruled that the HGNtest meets the Frye standard and is admissible when a properfoundation is laid. See People v. Buening, 229 Ill. App. 3d 538,545-46 (1992). The court observed, however, that People v. Kirk,289 Ill. App. 3d 326 (1997), a subsequent decision from anotherdistrict of the appellate court, took a different view. In Kirk adivided panel of the Fourth District of the appellate court held thatit is necessary to conduct a Frye hearing prior to the admission ofthe result of a HGN test in a criminal trial for DUI. Kirk, 289 Ill.App. 3d at 331.

Although it cited Kirk with approval, the appellate court inthis case stopped short of embracing that decision and overrulingBuening. Similarly, it did not expressly hold that the trial court haderred in admitting the HGN test results at the original trial withoutfirst conducting a Frye hearing. Instead, it simply suggested thatif a new trial is held following remand and the State wishes tointroduce evidence of the HGN test results, then "a Frye hearingmight well be appropriate."

On this appeal, the State does not take issue with the appellatecourt's decision to reverse and remand for a new trial based on thecircuit court's refusal to grant defendant a continuance. Nor doesit contest the appellate court's determination that the trial judgeshould not have required defendant to pay the $25 fee for herpublic defender without first holding a hearing on her ability topay. The State's sole concern is the appellate court's handling ofthe Frye issue.

The State contends that the appellate court's decision isproblematic because it denied the State the opportunity to addressdefendant's request that the appellate court address admissibilityof HGN test results under the Frye standard. According to theState, the appellate court's decision to vacate its original order andfile a new opinion in its place was tantamount to grantingdefendant the relief she requested on rehearing. Where a petitionfor rehearing is allowed, the opposing party has the right under ourrules to respond. 155 Ill. 2d R. 367(d). Because the court in thiscase purported to deny defendant's petition for rehearing,however, the State was deprived of that right. 155 Ill. 2d R.367(d).

The appellate court's decision is also problematic, accordingto the State, because its directions to the circuit court areambiguous and confusing. As we have indicated, the appellatecourt's decision neither overrules Buening nor expressly adoptsKirk and gives no clear indication as whether a Frye hearing is, infact, required on remand.

Before considering the State's contentions, we must firstaddress the position taken by defendant. In responding to theState's arguments, defendant goes beyond the points raised by theState and invites our court to use this matter as a vehicle forconsidering whether HGN test results should ever be admitted inprosecutions for driving under the influence. This we decline todo. The problem with undertaking such an expansive analysis isthat validity of the HGN test was never challenged in the trialcourt. Defense counsel raised no objection to the admission of theHGN test results against defendant, and use of the HGN testresults was not contested by defendant in her post-trial motion.

As a general rule, a defendant must object to an error at trialand include the objection in a post-trial motion in order to preserveit for review on appeal. People v. Enoch, 122 Ill. 2d 176, 186(1988). A reviewing court may override considerations of waiverwhere plain errors or defects affecting substantial rights areinvolved. 134 Ill. 2d R. 615(a). The present case, however,involves neither circumstance. In addition, because validity of theHGN test was not raised below, the record is devoid of theevidentiary material necessary to assess defendant's challenge.Such material cannot be presented to an appellate court in the firstinstance. We are not triers of fact. Our function is to serve as acourt of review. Accordingly, even if we wanted to take up thematter, we would have no informed basis for doing so.

Given the lack of pertinent evidence in the trial court, theabsence of appropriate objections by defense counsel, and thefailure of defendant to raise the issue in her post-trial motion, theappellate court's decision to address the validity of HGN testresults on rehearing is difficult to comprehend. Wholly aside fromthe question of whether the State was prejudiced by its inability tofile a response under Rule 367(d) (155 Ill. 2d R. 367(d)), theposture of the case was such that the appellate court could notpossibly make a definitive ruling on the matter. At best, itsconclusions could only be tentative and conditional. The result isa remand order that obfuscates the law and offers no clearguidance to the trial court. Based upon what the appellate courthas written, the trial court has no way to judge whether and underwhat circumstances a Frye hearing must actually be conducted.Accordingly, the appellate court's remand directions do little toadvance the court's stated goal in addressing the issue, which wasto prevent error on retrial.

The appellate court's analysis of the Frye issue is flawed foranother, more fundamental reason. Defendant cited research to thecourt questioning the validity of the HGN test. In ruling as it did,the court apparently believed that requiring a Frye hearing was theappropriate mechanism for bringing that research before the trialcourt so that the issue of the test's validity could be reassessed.The court's concern is legitimate. Science is not static, andmethods must exist for reexamining the validity of scientific testswhen new information is acquired. What the appellate court failedto appreciate is that the Frye test is not an appropriate vehicle foraccomplishing that purpose.

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which isfollowed in Illinois, pertains to the admission of scientificevidence which is novel. It requires that evidence be generallyaccepted in the relevant scientific community before it can beadmitted. People v. Miller, 173 Ill. 2d 167, 187-88 (1996). TheHGN test was found to meet the Frye standard in People v.Buening, 229 Ill. App. 3d 538 (1992). That decision, in turn, wasfollowed by the appellate court in People v. Wiebler, 266 Ill. App.3d 336, 339 (1994).

In the wake of Buening and Wiebler, HGN test results havebeen routinely admitted in prosecutions for driving under theinfluence. The tests are no longer "novel" in any meaningful sense.As a result, the State should not be put to the burden of having toreestablish the test's validity in every case. See People v. Kirk, 289Ill. App. 3d 326, 335-37 (1997) (Steigmann, P.J., speciallyconcurring). Where, as here, a scientific method has been shownto be generally accepted, a Frye test is no longer necessary eachtime the State seeks to use evidence obtained by that method. SeePeople v. Rozo, 303 Ill. App. 3d 787, 793 (1999); see also Peoplev. Thomas, 137 Ill. 2d 500, 518 (1990) (trial court did not err byfailing to hold a Frye hearing on admissibility of electrophoresistestimony after taking judicial notice of electrophoresis as anaccepted scientific procedure based on the prior decision in Peoplev. Partee, 157 Ill. App. 3d 231 (1987), that such testimony wasadmissible); People v. Johnson, 262 Ill. App. 3d 565, 568-69(1994) (trial court appropriately relied on precedential case law todetermine that the proffered DNA testimony was admissible andhad no need to conduct a Frye hearing prior to making its decisionon the admissibility of that evidence). To the extent that theappellate court's decision in People v. Kirk, 289 Ill. App. 3d 326(1997), suggests otherwise, it is hereby overruled.

Although the State is no longer required to show that theHGN test satisfies the Frye standard before it may introduce theresults of an HGN test into evidence, the validity of HGN tests andtest results is not beyond challenge. If a defendant has evidenceshowing that HGN tests are scientifically unsound, then he mayinterpose the appropriate objection to the HGN test results andpresent his supporting evidence to the trial court. If the trial courtis persuaded by the defendant's evidence, then the court has theright to bar its admission. Note, however, that it is the defendant'sobligation to show that the test results are infirm. It is not theresponsibility of the State to show that the tests and results arescientifically valid. Absent proof by the defense that the HGN testis unsound, the State need only show that the officer who gave thetest was trained in the procedure and that the test was properlyadministered.

For the foregoing reasons, the judgment of the appellate courtis affirmed, as modified herein, and the matter is remanded to thecircuit court for further proceedings consistent with this opinion.

Affirmed as modified.

I concur in the plurality's holding that defendant waived anyargument concerning the admissibility of horizontal-gaze-nystagmus (HGN) test results by failing to raise this argument inthe trial court. In light of this holding, the plurality's additionaldiscussion concerning the admissibility of HGN test results isentirely dicta without precedential value.

JUSTICE BILANDIC joins in this special concurrence.

JUSTICE McMORROW, dissenting:

The defendant, Linda Basler, was convicted of driving underthe influence based in part on the arresting officer's testimony thatdefendant failed the Horizontal Gaze Nystagmus (HGN) test. Anofficer who administers an HGN test asks the driver to cover oneeye and focus the other on an object, such as a pen, held by theofficer at the driver's eye level. As the officer moves the objectgradually out of the driver's field of vision toward the ear, theofficer watches the driver's eyeball to detect involuntary jerking.This jerking may indicate that the driver's blood-alcohol contentexceeds the legal limit. See People v. Buening, 229 Ill. App. 3d538, 539-40 (1992).

In an unpublished order, the Fifth District of the appellatecourt reversed defendant's conviction. The appellate courtconcluded that the trial judge erred in summarily denying a motionfor a continuance which had been filed by defendant. Accordingto the appellate court, the trial judge should have inquired intodefendant's circumstances and determined whether the motion wasmerely an attempt to delay trial.

Defendant subsequently filed a petition for rehearing beforethe appellate court. In this petition, defendant asked the appellatecourt to consider additional claims she had raised on appeal,including a claim that the circuit court should not have receivedevidence of the HGN test without first conducting a hearingpursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).Frye requires that novel scientific evidence be generally acceptedin the relevant scientific community before it may be admitted attrial. People v. Miller, 173 Ill. 2d 167, 187-88 (1996). Theappellate court thereafter issued a published opinion in which itreiterated its prior conclusions and stated that defendant's petitionfor rehearing was denied. Nevertheless, in the published opinion,the appellate court addressed the merits of defendant's argumentregarding the use of HGN testing and the Frye standard.

Addressing the Frye issue, the court noted that the FifthDistrict of the appellate court concluded, in People v. Buening,229 Ill App. 3d 538 (1992), that HGN testing is generally acceptedin the relevant scientific community and that such testing isadmissible when a proper foundation is laid. However, in Peoplev. Kirk, 289 Ill. App. 3d 326 (1997), the Fourth District disagreedwith Buening and criticized its analysis regarding generalacceptance. In particular, the Kirk court disagreed with Buening'sheavy reliance upon a judicial decision from Arizona (State v.Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986) (en banc))which concluded that HGN testing meets the Frye standard. Kirknoted that relying exclusively upon prior judicial decisions toestablish general scientific acceptance can be a " 'hollow ritual' "if the underlying issue of scientific acceptance has not beenadequately litigated. Kirk, 289 Ill. App. 3d at 333, quoting 1 J.Strong, McCormick on Evidence