supplying the rebuttal the basic question before your honor's today is whether or not the police administered h g n test is admissible in court to prove the conclusion that a person is i'll call impaired after the re man has made certain rulings which we disagree with to address those specifically the trial court really never answered the question whether the test is admissible to prove the conclusion that a person is alcohol impaired rather judge brandt specifically held that it's admissible for the possibility that a person consumed alcohol and that they might be under the influence which is far below the dictate of this court which was whether it in fact proves impairment i and whether the methodology is accepted in that field yes it's a very it was a very large question i actually looked through the court's original decision here in the count one if i may refer to it as such and the the  charge that was sent back to the trial court for the purpose of the fry hearing was not to determine its admissibility for the house ability of impairment but its admissibility for the proof or conclusion of the parent i simply bring that out because i believe that what the trial court's rulings were bell short of the charge for which it received now that's wasn't the charge to conduct it did use it to do so but the question i thought that was before the court there was to answer ultimately have to the frye hearing the question of whether approves employed pearman and what we received as an answer to summarize is that it proves the possibility of  whether or not there was jones yes he did find that it was generally acceptable to prove the possibility of consumption of alcohol and generally acceptable of prove the somebody might be under the influence of alcohol i emphasize that because  mccown was convicted allegedly based on proof beyond a reasonable doubt in the actual trial itself the test was used not for the past ability of impairment but for proof of actual impairment on that issue it was further evidence other than the evidence he had there was evidence of a of a double zero if you will alcohol test and there was no other field sobriety tests it was very little evidence and this court itself found that the h g s test did form a major portion or basis for the finding of guilty for its admission as proof of the actual impairment this is the most extensive and frankly the only hearing i would submit where both sides really were able to introduce the full plethora of evidence many of these other hearings were one sided  of whether or not it should be admissible you can argue weight in any specific case well judge grants to be candid was wrong that's what we feel there are many reasons for that first off we go back to his finding which was that he found that the test was admissible in the field of optometry and he resorts to a resolution that was performed or passed by voice filled or otherwise without debate or research at an american up to metric himself admits is different than the police test that that somehow translates into a police officer's use of a police technique dr site tech the state's proponent if you will  mit's he's never actually even taken or passed the police course for their actual police administered test he admits that his medical test is different than the police test that translation by judge grants i feel is a bit of is a bit disingenuous because there are two apparently two different techniques dr citron the board certified ophthalmologist he testified that he gives an h d n test which also is different than the police administered test and that his test is only acceptable in and medical community to establish a possible central nervous depression or illness which could be up to two hundred plus clauses only one of which is alcohol so now we have in judge grants ruling the logic that because there's a medical h c n test that they use with all the training behind them as ophthalmologist or optometrists that that test can translate into a variance employed by police to designate a clause as soley elko hall by officers do not necessarily have college degrees certainly are unlikely to have attended and successfully completed an optometrist school certainly and not doctors or ophthalmologists and the bottom line is have attended at standardized h d n test is a very specific six or eight part test which if completely in strictly complied with according to nitsa i may refer to them as such will allow for the possibility of proof of impairment now statistical research that's actually been performed on that has proven that a failure of that test correlates to a b a c a blood alcohol concentration level of approximately eight point zero four half our legal limit for clues out of six translates to a point zero for across the board all the experts agree to that yet police officers and a point zero four in illinois law point zero five or less is presumed innocent of dui point zero eight being the legal limit should remain inadmissible it's a systemic failure across the board not only in the training of the officers three hours six hours four questions even if they get all of them wrong if they get the other sixteen questions right on the other field to us they are considered certified and experts in h c m for the rest of their lives the training system which i don't think you can separate is deficient specifically in that decision that the defendant raised not only the issue of fry but the issue of foundation for the admissibility of the test even in the absence of fry that on page eight of the rule twenty three opinion which would also be referred to as a dash nineteen of the original briefing arguments for the defendant before this court  defendant was in fact impaired this is a case where the person was brought to the hospital there were no field sobriety tests it would be i would say difficult leave it to stretch so far as to say the remaining evidence proved impairment beach but the person was in a hospital bed and the officer himself testified that he did not form the opinion that the person was under the influence of alcohol until after he gave the test and that he relied upon it in formulating that opinion whether that needs to be fleshed out or remanded it's our position the remaining evidence was insufficient but again the case the case is on its facts it's not about whether some   heard it right i thought rule that it was accepted the evidence was acceptable under it was acceptable for the limited purpose of the possibility of them parents his basis for doing so is that this is typical language that we humans ultimately yes his conclusions he gives a brief answer yes it's acceptable but if you go to the last page of his opinion he has great concerns about the value of the test and therefore the final page of his ruling issues if you will the limitations for which he would indicate it can be used which is that a failed test may be limited to the conclusion that a failed test suggests the subject may have consumed alcohol and may be under the admissibility is in his overall conclusion really looking at all of them he said it by friday and bottom line in conjunction with other evidence it may be used as part of the police officers opinion that the subject is under the influence and  poor that that is his conclusion or that is one of the statements in his multi page ruling however that's why i want to understand why and again and in light of your justice it's gerald's question why what we're really not taught what  you're really talking about here is if the evidence is admitted why it should be of limited weight because of everything you've indicated here you had the jury is is  because this is a scientific test as your honour's indicated correctly in your original opinion it's going to be given the aura of significant weight and potential because it's a scientific test to mislead it is it is basically speculation gas in conjecture when it hasn't but if that's your position what you're really asking this court to do is look at the expert testimony or what have you that happened at that hearing and determine that h c n does not while that's correct because the ultimate conclusion on friday is reviewed to novo and the trial court's conclusions are recorded no wait the findings of fact are quoted wait but frankly this is not a finding of fact not well i agree because this is not simply a classroom discussion of the the merits of the test but ultimately boils down to whether officer class performance qualifies  with arden and the first time through yes it was and if the trial court had in fact performed the frye hearing during the trial as this court has basically ruled it should have the evidence that we now have before us would have been before the trial court to exclude then officer class test if that trial court had done its job correctly it would have heard what we now hear that's the presumption and it would have known and the evidence of the lack of foundation would have been before them but the it's the state's obligation to prove it was done correctly and frankly the mere words that officer class said are an example of how problematic this h d n test is he indicated he's done this test hundreds of times yet every expert before the in the fryer and said he didn't run and that there was no way you could ren that test that officer class did was valid that tells us hundreds of times he himself has apparently performed this test misused it perhaps misled various components of the test that's how  dangerous it is to put the tool a scientific tool of this nature into the hands of police officers who are receiving training of three six hours who are not hardly tested on their knowledge of it their proficiency in actually moving the stylus and all of that are not tested at all in any pass or fail way and they're never even recertified i asked the court to look at the systemic issue before your honor it's not necessarily whether and not tama trist can do it because clearly they can and what they use it for it's whether a police officer should be put in their hands the court should not begin to judicially engraft if you will we'll let the police do it but they need more training they need more tests you would almost have to create an entire system to get them up to par i'm fearful that what would happen level there delaware has they've essentially i don't know if they've traditionally engrafted it or whether it was merely a fact that their officers go through substantially greater training taxes substantially greater training recertification these reinvestments maryland i believe requires not only an officer but an additional expert to have to appear such as an optometrist or at least explain that there are other causes police officers are told get on the stand tell them for for clues is a failure means somebody is impaired even though we know in reality that's a point zero four and they hide their heads in the sand when you try to ask them about the forty seven to two hundred forty one other possible causes of nystagmus they just say i was only trained about alcohol that's all i know and i'm trained that that means they were impaired also you know i was if you want to ask you question the answer is yes no or i don't know that but i know the blake case specifically said that it's quoted in your original mccown one opinion little bit beyond yes thanks thank you morning your honour's and me please the court i'm assistant attorney general michael blake and i'm on behalf of the people i just to answer your question justice this gerald the arizona courts do not limit the use of each and every instance probable cause in arizona of the test is admissible for the same purpose we're seeking to have it admitted here on the substance of question of whether a person is under the influence of alcohol the case of the question presented in this case is both quite important and quite narrow and as posed by this court's opinion in mccown one which you can find on page eight fifty nine of the defense of appendix is whether the h c m test is generally accepted as a reliable indicator of alcohol impairment courts across the country that have addressed that question following an evidentiary hearing have and are nearly unanimous in holding that the test is so excepted the circuit court in this case put illinois in line with the dominant view of that evidence after hearing to identify central nervous system impairment those experts who testified at the primary in this case were also unanimous that the that a failed h t n test when conducted by a properly trained officer can indicate that the that at least two of the experts who testified dr sites and sergeant le bron noted that the issue with class administration being improper was not so much that he administered some sort of rogue h t m protocol but that he he he omitted in his description of the test certain phases of the protocol namely the prescreening phases and an incorrect use of certain terminology and that goes to prove th people's point that there was no contemporaneous objection in the trial court to the foundation for officer class testimony now had defendant objected and put into issue whether officer class test was zone mr maloney are interested in whether friday the h t m meets the freitas but they're also interested in their client i mean are we can this court look at this and indicate that determines that the h e n test is is inadmissible if the court if the court were to reach that there are so hold then the case would need to be remanded for eight for a new trial in light of the court's finding in mccown one that the introduction test was harmful error in this case it would seem that it's important that if in account we retain jurisdiction of this i know we sent it back for you know a specific finding under frye but we retain jurisdiction and  know in view of the failure to object to trial is an independent ground for having a claim for if it ok and you said it's not in the way that's correct or and i'd like to turn to that to the court's question regarding the use for which the h e n test will be offered in dui prosecutions and the fact of this the facts of both the trial the defense original trial and a fry hearing confirmed that the people seek reasonably limited use of the h g s test as if to fry hearing master sergeant le bron who is with the almost state police testified of pages two twenty nine through two thirty one of the record you do you believe that the current honor he indicated that all persons who are wishing to become police officers have to pass through a training academy that certified by the law enforcement training board of illinois and he testified that that institution prescribes standardized curricula for field sobriety test training and the script curriculum that's prescribed for the extent asked by then situation is that it's a standard which is at issue in this case case is is considerably different than the other purposes for which the test was sought to be used in that case are considerably more expansive than the purposes for which the test is being used in illinois and this is on page forty three of the defendant's brief the opening brief the trial court in the delaware case indicated that based on his review of the record presented at that the daughter hearing that case the officers were insufficiently trained to identify whether other forms of or other symptoms were causing the stagg mess they were police were insufficiently trained to testify regarding margin of error and to testify to statistical correlations between alcohol and their brain  know what the court did indicate in that case that additional training would be appropriate but only because of the additional purposes for which police officers were tempted to use the issuance house floor and again to go back to this case in this case provides a good example of the reasonably limited use that the people seek to make of the issue and test on in this case deputy class didn't opine that the defendant was impaired solely on the basis of the h t on test he'll pine that based on all the information slurred speech a witness at the scene of the crime and also deputy klatt speaking with the defendant at the hospital smelled alcohol on her breath there is the nature of the accident in this case which is on a call in clear conditions there's indications at the scene that the defendant was speeding and for not for no reason suddenly slammed on her brakes and veered into the lane of on coming traffic there was a can a partially full can of beer found in the defendant's car additionally she ad is sufficient to prove the the under the influence element beyond reasonable is the follow up on justice freeman i want to ask you about mr ram cells he would make a the testing is roughly twenty four hours he mentioned that the examination portion as for questions only in h t m is that what the evidence in this case shows at to provide a backdrop against which to measure the officers and ministration of the test so it's not simply taking a test you're certified you have to show to the instructor satisfaction that you know how to administer the  focusing on the officers ability to administer the tests and what clues to the officer detects and that would be used to match against the b a c level that the training officer would know based on  hearing testimony is not admissible therefore there were no standards until good brands or good were reviewing oh no that's not a sufficient basis to preserve the claim at issue and that was recognized not only by the trial court at the original trial who knows who said well i'm going to admit the evidence i'm not going require a fry hearing but i recognize that it's an open question whether if the test itself is generally accepted whether and even at that point that the appellate court was studying for the standard for a proper foundation for the h t m test so it goes to show that the defendant's objection to the specific administration in this case is not dependent on the object a foundation deprives the people of the opportunity to cure any error in the foundation it into turn back to my comments was going to say is that your on your honest questions about training and the particular application of the i experts in the relevant fields reasonably rely on the h e n test and the overwhelming weight of the evidence is that they do optometrists up from ologists and physicians rely on a materially indistinguishable version of the h c m test in their clinical practices experts in all three fields testified that they observed in examining their patients they'll be observing the patients eye movements for an a stag miss the lack of smooth pursuit movements which is the first phase of the test i mean was it the finding of most or all the experts in this case police officer here that meet those standards you're now discussing yes ultimately all the witnesses did testify to that and if i'm if i might i like to cite your honor to page three eighty three eighty one of the record where a doctor cited testified that that there were certain aspects of the test were omitted in the officer's description and also to pay just six seventy six seventy two were defen expert dr henson testified that well debbie klatt didn't use the correct terminology and he doesn't say he observed the status prior to forty five degrees and that's important because it suits to go to what just thomas was asking that had there been a office testimony he's a general physician who practiced at the los angeles county jail for seven years and it was incumbent upon him in that role to identify in the mideast to the jail whether those individuals were under the influence of alcohol and he used by law enforcement the test used by the atomic tourists any of ophthalmologists have additional steps that the police officers don't administer but the three primary components of each test are relied upon by optometrist citron testified that's the defense ophthalmologist expert he's administered thousands of those tests he ministers on to every new patient he sees on every annual exam he gives and also he testified that as a matter of course  yes think yes i was just going to turn to that point all the experts testified dr citron doctor and doctors uk testified that a failed h c n test result indicates central nervous system impairment they both also testified that one explanation for the failed result is of the consumption of alcohol further there's additional testimony by the experts that if you fail to issue an test you're statistically more likely to have a blood alcohol content a point zero weight or above and indeed the trial court found in its opinion at page a sixty six of the defense of appendix that it's axiomatic that a failed h c n test result which suggests an excessively high blood alcohol content indicates alcohol impairment  for that reason because the test is generally accepted by experts in the relevant field to identify central nervous system impairment and because the experts agree that ph d on task results can be caused by alcohol the circuit court and page seventy of the appendix if you just reference item four of those findings says there should be no attempt to correlate the test results with any particular blood alcohol level or range or level of intoxication he did make that find apparently proved that by offering the test that you say is going to be given only a limited range it sounds like little more than a limited it's limited in the sense that it's not its heart it's a hypothetical situation would at the time the officers on the stand the trial court without making an objection as to the foundation of that office or he doesn't have the invited error so to speak he doesn't have the opportunity to try  to lay a more sufficient foundation without the object well i think it just is that we need to strike hearing is our argument that in compass is everything regarding that testimony from officer class and as to how the test was done and his ability to was administered in this case are we talking about the broader question the methodology being the scientific principles that would lead one to believe that this test tells you something it's it's both it's  names or the procedures used most of don he said he did the testing for rockley and so in this case it applies but generally it applies across the board it seems to me the first question this court has to answer is the question of whether it we're not talking about as to whether or not there was any research or are dead of done in that any debate with the taking of a bunch like everybody agrees raise their hand and no one said anything so i think that really and judges brandt or judge greer relied on that the research and this issue to really say the e c m test is a valid indicator of alcohol impairment or even consumption has some point so the science is on our side the methodology th yes or but we feel that they try to test the fry hearing shows that the nation test is not generally accepted in the fields in the community which is supposed to be accepted that it is naturally accepted enough to pacify a test with the methodology that and here's where i have a really big problem with this the only person that can testify the eyes were bouncing is the police officer we have videos now that show people driving erratically or during field sobriety tests and a jury can look at a video or and determine if that the person is actually showing signs of impairment you can bring in witnesses to say i was at the bar or party with him and the person only had two or three drinks i was at the scene i was the passenger in the right and without a video who's going to contradict them was there be able to go up and say if you pass a fourth time that you hold it out to the end of the four seconds like you're supposed to you officer is going to say he did a correctly and that's the problem with the test places too much weight on the officer's testimony that he convinces the jury i saw the bouncing in the balancing means drinking the drinking age impairment and that's the problem we feel is with the methodology used for the test  where they were put rice in a person's mouth and under the belief that if a person was lying they would not be able to generate an awesome live in their mouth to be able to talk and so that sort of person was lying that was a scientific test that this is the same thing this is junk science and should not be admitted into evidence it confuses the juries too much says this court's ruling two years ago there's been no dearth of cases people are still getting arrested for dui these people are still being found guilty of duis knowing difference maybe is that case number one zero two three seven to be taken under advisement as it