Docket No. 98800.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee v. ANDRE

D. ROBINSON, Appellant.

Opinion filed June 22, 2006.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Kilbride, and

Karmeier concurred in the judgment and opinion.

Justice Freeman dissented, with opinion, joined by Justice

McMorrow.

Justice Freeman dissented from the denial of rehearing, with

opinion.

OPINION

Defendant, Andre Robinson, was convicted after a jury trial in the

circuit court of Cook County of driving with a blood-alcohol

concentration of 0.08 or more (625 ILCS 5/11–501(a)(1) (West

2002)) and of driving while under the influence of alcohol (DUI)

(625 ILCS 5/11–501(a)(2) (West 2002)). He was sentenced to an 18-

month period of court supervision and ordered to undergo drug

testing during that period and to pay a $325 fine. His conviction was

affirmed on appeal, although the fine imposed by the trial court was
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vacated and the cause remanded for a determination of the

appropriate amount of a fine, if any. 349 Ill. App. 3d 622.

We granted defendant's petition for leave to appeal pursuant to

Supreme Court Rule 315 (177 Ill. 2d R. 315). In his petition,

defendant raised a single issue–whether the trial court erred by

denying his request for a Frye hearing (Frye v. United States, 293 F.

1013 (D.C. Cir. 1923)) on the question of the admissibility of

testimony regarding results of the horizontal gaze nystagmus (HGN)

test. For the reasons that follow, we dismiss the appeal.

BACKGROUND

The appellate court opinion provides a complete summary of the

evidence adduced at trial, including details of the traffic stop and

field sobriety testing conducted by Officer Barber. In brief, the

officer testified that after stopping a vehicle for improper lane usage,

he observed that the driver, defendant, had bloodshot eyes, slurred

speech, and a strong odor of alcohol on his breath. When defendant

got out of the car, his balance was unsteady and he swayed from side

to side. Defendant agreed to perform two field sobriety tests. The

officer testified that defendant failed the one-leg stand test because

he was unable to stand on one foot while holding the other foot off

the ground for 30 seconds. The officer also testified that he

administered the HGN test in accordance with the training he had

been given. He observed an involuntary jerking of defendant’s

eyeballs as the defendant attempted to track a moving object, the tip

of the officer’s pen, while the officer moved it from left to right. As

a result of this involuntary movement, known as nystagmus, the

officer concluded that defendant was under the influence of alcohol.

Defendant declined to perform two additional field sobriety tests, the

walk-and-turn and finger-to-nose tests.

For purposes of the present appeal, only the procedural history of

the case is relevant. Prior to trial, defendant filed a motion in limine

seeking to bar admission of evidence regarding the results of the

HGN test unless the State first established the reliability of the test.

The motion argued that HGN tests are not generally accepted in the

relevant scientific community and that, as a result, the State should

be required to lay a proper foundation for admission of the HGN

testimony in a Frye hearing.
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The motion cited this court’s opinion in People v. Basler, 193 Ill.

2d 545 (2000), in which the majority concluded that the question of

whether HGN test results are admissible in a prosecution for driving

under the influence would not be reached because the State failed to

preserve the issue for review on appeal. Nevertheless, three justices

went on to state that HGN tests “are no longer ‘novel’ in any

meaningful sense,” and, as a result, “the State should not be put to the

burden of having to reestablish the test’s validity in every case.”

Basler, 193 Ill. 2d at 551. The plurality also noted that:

“Although the State is no longer required to show that the

HGN test satisfies the Frye standard before it may introduce

the results of an HGN test into evidence, the validity of HGN

tests and test results is not beyond challenge. If a defendant

has evidence showing that HGN tests are scientifically

unsound, then he may interpose the appropriate objection to

the HGN test results and present his supporting evidence to

the trial court. If the trial court is persuaded by the

defendant’s evidence, then the court has the right to bar its

admission. Note, however, that it is the defendant’s obligation

to show that the test results are infirm. It is not the

responsibility of the State to show that the tests and results

are scientifically valid. Absent proof by the defense that the

HGN test is unsound, the State need only show that the

officer who gave the test was trained in the procedure and

that the test was properly administered.” Basler, 193 Ill. 2d at

551-52.

Two justices specially concurred, stating that in light of the

dismissal for failure to raise the HGN issue in the trial court, “the

plurality’s additional discussion concerning the admissibility of HGN

test results is entirely dicta without precedential value.” Basler, 193

Ill. 2d at 552 (Heiple, J., specially concurring, joined by Bilandic, J.).

The two remaining justices dissented, noting that even after

joining the majority’s forfeiture analysis, the plurality nevertheless

reached the merits of the issue. Basler, 193 Ill. 2d at 557

(McMorrow, J., dissenting, joined by Freeman, J.). They concluded

by emphasizing that “the issue of whether HGN testing meets the

Frye standard has not been resolved” by this court. Basler, 193 Ill. 2d

at 559-60 (McMorrow, J., dissenting, joined by Freeman, J.).
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Defendant’s memorandum in support of the motion in limine

argued that the HGN test is “scientific in nature” and, thus, the State

has the burden of establishing its general acceptance in the scientific

community. Defendant argued further that in light of Basler, there is

no controlling decision by the state’s highest court on this question

and, further, that the appellate districts are split on the question of

admissibility of HGN test results. In addition, defendant noted that

this case arose in Cook County and that the First District of the

Appellate Court has not yet addressed this issue. Therefore,

defendant concluded, he was entitled to a Frye hearing on this

question at which the State would have the burden of establishing

that the HGN test is generally accepted in the relevant scientific

community. The remainder of the memorandum cited various

authorities for the proposition that the HGN test is unreliable for the

purpose of determining whether a driver is under the influence of

alcohol.

A hearing was held on this and another motion on February 21,

2002. In his motion in limine to exclude the results of the

Breathalyzer test, defendant argued that the machine used to test his

breath had a history of malfunction and that the results it produced

were so unreliable that they should not have been admitted at trial.

On appeal, he argued that even if the Breathalyzer results were

properly admitted, the trial court erred by denying him the ability to

present evidence of the machine malfunctions to the jury. At no time

did he argue to the trial court or to the appellate court that the results

of the HGN test were in any way related to the officer’s request that

he submit to a Breathalyzer test.

As to the second motion under consideration at the February 21,

2002, hearing, the transcript reveals confusion regarding the nature

of defendant’s motion. The court expressed concern with “whose

time it is,” for speedy-trial purposes. Defense counsel responded that

in the Frye hearing, the burden would be on the State. The court,

however, stated that “[i]t’s the burden of the person making the

motion to proceed forward.” Thus, the court stated, any delay due to

a hearing on the motion in limine would be attributed to the

defendant. Defense counsel explained that he “would rest on his

motion” regarding the request for a Frye hearing and noted that he

was not “setting up an evidentiary hearing where I would have the
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burden.” The following exchange then took place between the court

and defense counsel:

“THE COURT: This is akin, a motion in limine is akin to

a motion to suppress, except for the fact that on the motion to

suppress you’re going on Constitutional grounds, on the

motion in limine you’re going on evidentiary grounds.

It’s still, the burden is yours to present evidence to sustain

your particular position.

COUNSEL: My concern, Judge, is the actual Frye

hearing, itself, is not our burden.

THE COURT: Well, I’ll tell you what.

If you read the Supreme Court case on that issue, it seems

to suggest that you have to make some sort of indication to

the Court that there is an issue regarding Frye and, in fact, I

should bring the case out because I looked at the words last

night, I took the case last night and, you know, and then it

goes to the State.

But I mean, you still have the responsibility to make the

issue.

COUNSEL: My understanding is that the burden is

shifted to the State once I object and request a Frye hearing,

and that’s what I’ve done, through a memorandum of law and

through a written motion given with two months notice to the

State.”

The trial court cut off further discussion on the basis that “we’re

getting beyond where we’re at” by “getting into the Frye issue right

now.” The court announced that “this delay is attributable to the

defendant.” Counsel again stated that the motion and supporting

memorandum made a sufficient showing of entitlement to a Frye

hearing.

The court then conflated the two pending defense motions by

stating that “You dealt with the issue of the [B]reathalyzer at first

because, obviously, that may negate this Frye hearing or this Frye

issue in total.” Moments later, the court asked counsel “Do you want

to withdraw the motion at this particular point in time for Frye?” and

counsel agreed to withdraw the motion without prejudice.
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The State commented that the refiling of the “Frye hearing

motion in limine” would have to be done in sufficient time that it

could be resolved prior to trial. The hearing ended with the setting of

a trial date. The record provided to this court does not contain a

subsequent written motion seeking a Frye hearing with regard to the

HGN test.

On April 4, 2002, the trial began. Prior to selection of the jury,

the trial court heard additional argument on the defense motion to

exclude the results of the Breathalyzer test based on evidence that the

particular machine used in this case had a history of malfunctions and

was eventually taken out of service. The motion was denied.

The trial court then asked, “How about the second motion on the

Horizontal Gaze Nystagmus Test?” Defense counsel responded,

“We’ll waive it.”

On April 5, 2002, after voir dire concluded but before opening

statements, the trial court considered several pretrial motions. At this

time, defendant moved to bar the State’s witnesses from

characterizing the results of the field sobriety tests as “passing or

failing.” Counsel argued that the State’s witnesses should be allowed

to testify to “what happened,” but that any characterization of

defendant’s actions as passing or failing would be “unscientific.”

Counsel stated that if the State wants to characterize a test result as

passing or failing, it must first demonstrate that either the Daubert

(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125

L. Ed. 2d 469, 113 S. Ct. 2786 (1993)) or the Frye test is met. The

motion was denied.

Defense counsel then requested a Frye hearing “during the trial”

with regard to “the officer’s ability to perform and characterize the

result of the HGN test.” The trial court indicated that Basler “controls

the case” and denied the motion.

After the jury returned with verdicts of guilty on both counts,

defendant filed a posttrial motion for a directed verdict of not guilty

and for a new trial. In this motion, defendant asserted that “[t]he

Court erred in denying Defendant’s motion requesting a Frye hearing

with regards to the scientific validity of the Horizontal Gaze

Nystagmus Test.”

A hearing was held on the posttrial motion on September 17,

2002. Defense counsel stated, “We asked for a Frye hearing on [the
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HGN test], we did not receive a Frye hearing. The motion in limine

was denied.” The State acknowledged that there is “a split in the

circuits on this issue of whether or not a Frye hearing is required

prior to introducing this substantive evidence in a DUI trial” and that,

in Basler, this court did not resolve the issue. Nevertheless, the State

argued that in light of the Basler dicta, this “is not the sort of thing

that is subject to a Frye hearing any more.” Defense counsel then

offered argument that the HGN test is unreliable and that such test

results should not have been admitted at trial. The trial court denied

the posttrial motion and an appeal followed.

The appellate court concluded that the results of the HGN test

were properly admitted absent a Frye hearing (349 Ill. App. 3d at

632), without mentioning that: (1) defendant’s motion for a Frye

hearing was withdrawn and apparently never refiled, (2) when given

the opportunity to argue the point on the first day of trial, the

defendant “waived” the issue, and (3) when the trial court did finally

make a ruling, it was only in response to a defense argument that the

officer lacked the ability to perform and characterize the result of the

HGN.

In his petition for leave to appeal, defendant asserted that review

of his case by this court would resolve the question left open in

Basler and resolve a conflict among the appellate districts as to

whether a defendant is entitled to a Frye hearing to determine

whether HGN test results are admissible as evidence of his driving

under the influence. We granted leave to appeal to answer this

question.

However, in his brief to this court, defendant does not address

this question at all. Instead, he argues that: (1) HGN evidence does

not meet the Frye standard, (2) this court should abandon Frye and

adopt the Daubert standard in its place, and (3) the HGN evidence

was not properly admitted in this case because the State did not prove

that the officer properly administered the test. None of these three

arguments were raised in defendant’s petition for leave to appeal. In

fact, none of these arguments were among the 41 separate assertions

of error contained in defendant’s posttrial motion.
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ANALYSIS

The third issue raised in defendant’s brief was not raised in his

posttrial motion, his appeal before the appellate court, or his petition

for leave to appeal to this court. It is, therefore, forfeited. People v.

Enoch, 122 Ill. 2d 176, 186 (1988).

The first and second issues are deserving of this court’s attention.

Unfortunately, they are raised for the first time in defendant’s brief

to this court and they, too, are forfeited. Although we note that the

rule of forfeiture is “an admonition to the parties and not a limitation

on the jurisdiction of this court” (People v. Normand, 215 Ill. 2d 539,

544 (2005)), we decline to address these issues on the merits for

several reasons.

First, the procedural history described above is, at best,

convoluted. It is unclear what issue was actually being argued to the

trial court and what question the trial court thought it was answering.

Under this circumstance, we would not be engaging in review, but

rather writing on a clean slate. This is not our proper role.

Second, defendant has failed to argue the threshold

question–whether he should have been given a Frye hearing–to this

court. If he had argued this question and if this court had answered it

in the affirmative, we might have then been persuaded to reach the

next question–whether HGN testing meets the Frye standard–even

though this question was not reached by the trial court. However,

because we do not cross the threshold, it would be inappropriate for

us to go further.

Finally, defendant was convicted of two counts. He has made no

argument that the results of the HGN test led to his being asked to

take a Breathalyzer test and the resulting conviction of driving with

a blood-alcohol content of 0.08 or more (625 ILCS 5/11–501(a)(1)

(West 2002)). Thus, even if we were to conclude that the results of

the HGN test should not have been admitted, this error would have

affected only his conviction for DUI (625 ILCS 5/11–501(a)(2) (West

(2002)). As a result, his conviction and sentence would still stand.

CONCLUSION

Based on the record before us and defendant’s failure to argue the

issue upon which we granted leave to appeal, we dismiss this appeal.
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The important questions that defendant unsuccessfully attempts to

raise are best left for another day. This cause is remanded to the trial

court for further proceedings in accordance with the judgment of the

appellate court.

Dismissed.

JUSTICE FREEMAN, dissenting:

I strongly disagree with the court’s resolution of this appeal. My

colleagues dismiss the appeal because defendant failed “to argue the

issue upon which we granted leave to appeal.” Slip op. at 8. In so

doing, this court does a great disservice to both bench and bar by

leaving unresolved the question that has split our appellate court

since the filing of our decision in People v. Basler, 193 Ill. 2d 545

(2000). Accordingly, I dissent.

A jury convicted defendant of driving with a blood-alcohol

concentration of 0.08 or more (625 ILCS 5/11–501(a)(1) (West

2002)) and of driving under the influence of alcohol (625 ILCS

5/11–501(a)(2) (West 2002)). Prior to the trial, defendant filed a

motion in limine to exclude the results of the horizontal gaze

nystagmus (HGN) test that had been administered to him by the

arresting officer. In the motion, defendant argued that HGN tests

have not been generally accepted in the scientific field and that,

absent a foundation laid by the State that the HGN test comported

with the requirements of Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923), the results should be barred. Although defendant at one

point “waived” this motion, defendant, during trial, once again

requested a Frye hearing. The circuit court substantively denied the

renewed motion, ruling that this court’s decision in People v. Basler,

193 Ill. 2d 545 (2000), controlled the issue.

On appeal, the appellate court held, inter alia, that the trial judge

properly denied defendant’s motion to bar the results of the HGN test

absent a Frye hearing. 349 Ill. App. 3d 622. In so holding, the court

stated that the HGN test is generally accepted in the scientific

community and thereby no longer necessitates a Frye hearing prior

to admission into evidence. 349 Ill. App. 3d at 631.
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Defendant subsequently filed a petition for leave to appeal (PLA)

in this court, in which he sought this court’s clarification of whether

a trial court must first hold a Frye hearing before allowing the

admission of HGN test results into evidence. Defendant stated in his

PLA that “the instant case presents an opportunity for this Court to

squarely resolve the question of whether the HGN test meets the Frye

standard, a question that was left open in Basler.”

In its opinion, the court states that the question we granted leave

to appeal to answer in this case was “whether HGN test results are

admissible as evidence of his driving under the influence.” Slip op.

at 7. The court believes that defendant does not address this question

“at all” (slip op. at 7) and “has failed to argue the threshold

question–whether he should have been given a Frye hearing.” Slip

op. at 8. In my view, the court is mistaken in so holding. While I

acknowledge that defendant’s brief is inartfully constructed and does

not always clearly draw the connection between his argument that

HGN evidence does not meet the Frye standard and his claim that he

should have been granted a Frye hearing, if this court were to dismiss

every appeal in which parties’ arguments were inartfully presented,

we would have to dismiss many appeals. See People v. Jung, 192 Ill.

2d 1, 13 (2000) (Freeman, J., specially concurring, joined by Miller

and McMorrow, JJ.) (acknowledging that this court has responded to

inartful briefing in many cases). In contrast to my colleagues in the

majority, I believe defendant’s briefing adequately provides enough

in the way of analysis for this court to address the question “we

granted leave to appeal to answer in this case.”

In his opening brief, defendant identifies the first issue with the

following heading: “Scientists have not accepted the Horizontal Gaze

Nystagmus (HGN) field sobriety test as a valid scientific technique

and thus HGN evidence is not admissible under the Frye standard.”

While this heading or statement of the issue is overly broad, I note

that in the body of the argument which follows it, defendant states

that because Illinois reviewing courts have never affirmed the use of

the HGN field test in a DUI prosecution after a fully litigated Frye

hearing, “a hearing should have been held in this case and it was

improper for the courts below to take judicial notice of general

acceptance through the 1996 decision of the Arizona court.” This, of

course, is the “threshold question” raised in defendant’s PLA.
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Even if I could agree that defendant did not address the “threshold

question” in his brief, I could not agree with the court’s resolution of the

appeal. I note that our appellate rules allow for a PLA to stand as an

opening brief. See 177 Ill. 2d R. 315(g). Although defendant did not comply

with this rule, this court could, in lieu of dismissal in light of the split of

opinion in our appellate court, strike defendant’s brief and rely solely on his

PLA and the arguments contained in it. This approach would have been

workable here given that the State’s brief contains an argument addressed

to the “threshold question” raised in the petition. In my view, such an

approach would strike a more appropriate balance in dealing with what is

perceived by the court as defendant’s briefing deficiencies because it would

allow the highest court of this state to do what it is supposed to do in cases

taken on its discretionary appeal docket, i.e., provide guidance to the lower

courts by resolving a conflict caused by one of our opinions. 

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Elsewhere in this same argument, defendant argues that “HGN

evidence is subject to the Frye test” and that because “Illinois law

provides no conclusive answer on the admissibility of HGN, it must

be novel and subject to the Fyre standard.”

In light of the above, defendant did indeed raise the “threshold

question” in his brief. Under Frye, which is followed in Illinois, the

evidence in question must be generally accepted in the relevant

scientific community before it can be admitted. See People v. Miller,

173 Ill. 2d 167 (1996). This case presents the question of whether it

is necessary to conduct a hearing pursuant to Frye prior to the

admission of the result of a HGN test in a criminal trial for DUI.

Defendant’s brief suggests that such evidence is not generally

accepted in the relevant scientific community while the State posits

that not only does the relevant scientific community find such

evidence generally acceptable, a trial court need not hold an

evidentiary hearing to so conclude but rather can take judicial notice

of the fact. Thrown in for good measure is a basic disagreement

between the parties over the question of whether the necessity of a

Frye hearing turns on the novelty of the scientific evidence in

question. Simply stated, there is nothing about defendant’s brief that

prevents this court’s resolution of these questions.1

I am also troubled by another aspect of today’s decision. The

court’s opinion spends a great deal of time reciting the procedural

history of the case, including what was contained in defendant’s
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initial motion in limine (slip op. at 2-4) and what was said by counsel

in response to questions posed by the court (slip op. at 5-6). In fact,

in its “Background” section, the court states, “[f]or purposes of the

present appeal, only the procedural history of the case is relevant.”

Slip op. at 2. Given that the court is dismissing the appeal due to

defendant’s “failure to argue the issue upon which we granted leave

to appeal” (slip op. at 8), its opinion should amount to nothing more

than an order of dismissal, and the “procedural history of the case” is

wholly irrelevant. This leads me to wonder whether my colleagues in

the majority are suggesting that defendant did not properly preserve

his objection to the admission of the HGN test evidence. If so, I

disagree.

As I noted previously, defendant moved in limine to bar the

admission of the HGN evidence. At the hearing on the motion, the

circuit court was concerned not with the substance of the motion but,

rather, whether the ensuing delay that holding such a hearing would

cause would be attributable to defendant. Defense counsel later told

the court that he would “waive” the HGN-test motion.

Notwithstanding this “waiver” of the motion, the trial court allowed

defendant to again request a Frye hearing during trial. Citing to

Basler, the circuit court denied the motion in a substantive ruling.

Defendant later raised the failure of the circuit court to conduct a

Frye hearing as a basis for granting him a new trial in his posttrial

motion. The circuit court held a hearing on the motion, at which the

parties provided extensive argument on this issue.

In order to properly preserve an issue for appellate review, a

defendant must both make a contemporaneous objection and raise the

matter in a posttrial motion. People v. Enoch, 122 Ill. 2d 176 (1988).

Despite his initial “waiver” of the motion, defendant apparently

renewed the motion at trial, and the trial judge entertained it on its

merits. This satisfies the contemporaneous-objection requirement

needed for preserving an issue for review. The matter was also raised

in the posttrial motion, thereby satisfying the posttrial motion

component of the rule. Thus, any implicit suggestion that, because

this matter was not properly preserved, the court need not resort to its

supervisory authority in response to defendant’s “failure to address

the issue upon which we granted leave to appeal” misses the mark

completely. Along these same lines, I believe that if the appeal is
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being dismissed solely on the ground that defendant failed “to

address the issue upon which we granted leave to appeal,” the court

should withhold making statements concerning (i) how any error in

the admission of the evidence would or would not have affected his

conviction and (ii) whether his conviction and sentence would “still

stand.” Slip op. at 8. Given the purely technical grounds identified by

the court as the reason for the appeal’s dismissal, it is irrelevant what

this court thinks about the substance of defendant’s convictions,

which stand by virtue of the appellate court’s affirmance. Any written

opinion in this case should be limited only to the fact that the appeal

is being dismissed due to “defendant’s failure to argue the issue upon

which we granted leave to appeal.”

In light of the forgoing, I cannot agree with the court’s disposition

of this appeal, which serves only to prolong unnecessarily the debate

currently raging in the appellate court with respect to our opinion in

Basler. Having read defendant’s PLA, his opening brief, the State’s

brief, and defendant’s reply brief, I believe this court can answer the

question raised in this appeal. I strongly disagree with court’s refusal

to do so.

JUSTICE McMORROW joins in this dissent.

Dissent Upon Denial of Rehearing

JUSTICE FREEMAN, dissenting:

I continue to believe that the court wrongly dismissed this appeal

and thus continue to voice my strongest disapproval of the court’s

actions upon denial of rehearing.

Defendant’s petition for rehearing contains two main arguments.

In the first section, defendant’s attorney maintains that the brief she

filed did, indeed, contain the issue upon which this court granted the

petition for leave to appeal. In the second section of the petition,

defendant’s attorney states the following:

“Based on this Court’s decision to dismiss Andre Robinson’s

appeal from his criminal conviction due to counsel’s

inadequate briefing, appellate counsel seeks leave to

withdraw due to her deficient representation, and requests
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appointment of new counsel to properly brief the issues that

the Court defines.”

In essence, defendant’s attorney is confessing to having rendered

defendant ineffective assistance of counsel. It is unclear to me why

this portion of the defendant’s petition for rehearing has not

generated any type of response from my colleagues in the majority.

Do they not agree that an appointed attorney provides ineffective

assistance of counsel when her purported failure to properly argue the

issue upon which an indigent defendant was granted leave to appeal

results in the dismissal of that appeal? The court’s silence, in the face

of its initial condemnation of counsel’s actions in this case, is

difficult to explain.

Turning to the first section of defendant’s petition for rehearing,

I agree that the defendant’s brief did in fact contain argument on the

question upon which this court granted leave to appeal. In Illinois, the

exclusive test for the admission of expert testimony is governed by

the standard first expressed in Frye v. United States, 293 F. 1013

(D.C. Cir. 1923). Donaldson v. Central Illinois Public Service Co.,

199 Ill. 2d 63 (2002). Under Frye, scientific evidence is admissible

at trial only if the methodology or scientific principle upon which the

opinion is based is “sufficiently established to have gained general

acceptance in the particular field in which it belongs.” Frye, 293 F.

at 1014. A trial judge will apply the Frye test only if the scientific

principle, technique, or test offered by the expert to support his or her

conclusion is “new or novel.” Donaldson, 199 Ill. 2d at 79, citing

People v. Basler, 193 Ill. 2d 545, 550-51 (2000). “Only novelty

requires that the trial court conduct a Frye evidentiary hearing to

consider general acceptance.” Donaldson, 199 Ill. 2d at 79. Once

such a principle, technique or test has gained general acceptance in

the particular scientific community, its general acceptance is

presumed in subsequent litigation. Donaldson, 199 Ill. 2d at 79. For

this reason, DNA analysis does not require a Frye hearing because

the principles have been found to be generally accepted. See

Donaldson, 199 Ill. 2d at 79.

Applying the above principles to this case, it is difficult to

comprehend the court’s continued insistence that the argument raised

in defendant’s brief was forfeited because it was not the issue upon

which this court granted leave to appeal. Defendant, in his brief,
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argued that HGN evidence does not meet the Frye standard. In his

petition for leave to appeal, defendant identified the issue for review

as being whether a defendant is entitled to a Frye hearing to

determine whether HGN test results are admissible as evidence of

driving under the influence. Importantly, our case law dictates that if

a scientific technique or test, in this case the HGN test, is viewed as

generally accepted, then no Frye hearing need be held. But if the test

is novel or new, then a Frye hearing must be held so that the fact

finder can rule on whether it is generally accepted and thus

admissible. In his brief, defendant argued that a Frye hearing should

have been held because our opinion in Basler did not resolve the

question of the HGN test’s general acceptance. Specifically, the brief

states:

“Because Illinois reviewing courts have never affirmed the

use of the HGN field test in a DUI prosecution after a fullylitigated Frye hearing, a hearing should have been held in this

case and it was improper for the courts below to take judicial

notice of general acceptance through the 1986 decision of an

Arizona court.” (Emphasis in original.)

In the petition for rehearing, defendant’s attorney identifies

substantive sections from the brief where she explained (i) why the

lower courts’ had incorrectly held that HGN testing was generally

accepted in light of Basler and (ii) why the circuit court’s failure to

hold a Frye hearing was incorrect. As she did in her reply brief to the

State’s assertions of forfeiture, defendant’s attorney, in the petition

for rehearing, points to this court’s decision in In re Commitment of

Simons, 213 Ill. 2d 523 (2004), in which this court ruled, for the first

time, that de novo review of Fyre decisions was appropriate as being

the reason why she organized the brief in the manner in which she

did. Notably, the court continues to ignore this argument today just

as it did when it filed its original opinion.

Defendant’s brief, not surprisingly, took the view that a Frye

hearing should have been held in this case. It also took the view that

failure to hold the hearing could not be harmless because HGN

evidence does not meet the Frye standard and any admission of such

evidence was prejudicial. I do not understand how five members of

this court can hold that these arguments are different from the issue

raised in the petition for leave to appeal. As I see it, the court either
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lacks a basic understanding of the substance of the Frye claim that is

at issue in this appeal or has, for some reason, read defendant’s brief

in an overly narrow and rigid manner. Given my utmost respect for

my colleagues’ legal intellect, I can only conclude that the latter

reason is the true cause for this result, and the court should grant

rehearing in order to rectify this.

Moreover, even if the court were justified in its criticism of

defendant’s brief as having violated the appellate rules of briefing, I

continue to believe that its imposition of the harshest sanction

available, dismissal, is wholly unwarranted. As I noted in my original

dissent in this case, the court could have stricken the brief and

restricted defendant to the single argument the court alleges was

advanced in his petition for leave to appeal. In that way, the court

could have made its point and, at the same time, still addressed an

issue of law that has wrought confusion in the lower courts. Indeed,

in the petition for rehearing, counsel formally asks this court to do

just that if it denies her motion to withdraw based on having rendered

ineffective assistance of counsel. The court ignores this motion just

as it ignored me when I raised the same solution in my original

dissent. To this day, the court has remained unwilling or unable to

explain why it could not produce an opinion in this case which

resolved “the issue upon which we granted leave to appeal.” Slip op.

at 8.

It is not enough that the court is wrong in its conclusions

regarding the adequacy of defendant’s brief and its choice of sanction

for that purported inadequacy. Its decision to dismiss the appeal has

several implications that reach beyond this case, which I address in

turn. First, since this court issued its fractured decision in People v.

Basler, 193 Ill. 2d 545 (2000), both our trial courts and appellate

court have struggled with the admission of HGN evidence in DUI

cases. Unfortunately, DUI litigation is not an obscure, rarely

practiced field of law in this state. In 2005 alone, our circuit courts

across the state disposed of 62,560 DUI cases. 2005 Annual Report

of the Illinois Courts, Statistical Summary, at 43. One would like to

believe that the heavy volume of these cases in our court system

would prompt the court to fashion the sanction imposed in this case

in such a way so as to allow the court to address the important legal

issue this case presents, particularly because the legal community
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“rel[ies] on our opinions to map the evolving course of the law.”

People v. Jung, 192 Ill. 2d 1, 17 (2000) (McMorrow, J., specially

concurring, joined by Miller and Freeman, JJ.). As I pointed out in

my original dissent, this court’s raison d’etre is to provide guidance

to the lower courts by resolving conflicts created by one of its own

opinions. As it stands, both bench and bar must now wait until

another day for the needed clarification in this important area of the

law simply because of the court’s unjustified belief that defendant’s

brief failed to argue the issue upon which we granted leave to appeal.

Second, the court’s action displays a profound insensitivity to the

effect its holding has on the people involved in this case. Defendant

has, of course, lost the opportunity to be heard in this court that he

won when we granted him leave to appeal. Overlooked, however, is

the fact that this court has maligned defendant’s appellate attorney

wrongly. I continue to maintain that defendant’s brief did not suffer

from the fatal flaws identified by the court in its opinion. As noted at

the outset of this dissent, defendant’s attorney seeks leave to

withdraw if the court continues to view her brief in the same manner.

If the brief was truly as bad as the court has held it to have been, why

not allow appointed counsel to withdraw? Perhaps the reason for the

court’s silence is that the brief was not the flawed document that it

was painted to be in its opinion, and my colleagues do not want this

attorney to have the stain on her professional record that confessing

to providing ineffective assistance of counsel would bring. Such

benevolence, of course, overlooks the fact that, as it stands right now,

defendant’s attorney will have to bear the undeserved consequences

that the court’s opinion will have on her career going forward. There

can be no question that the court’s opinion spoke negatively of her

work product. How the court’s unjust characterization has affected

the attorney’s standing with her superiors is unknown. But, if this

attorney has aspirations for a judicial career, this case exists in the

public domain. She would be vulnerable to criticism as a result of it.

I can only wonder how my colleagues would react if their

professional reputations were sullied in such fashion.

Finally, the court’s treatment of this case should give pause to all

attorneys who practice before us. By its actions, the court has

provided our legal community with an unflattering look into its

decisionmaking process. This is not a court to which the strictures of
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our own rules or the doctrine of procedural default are scrupulously

honored. Were it so, today’s decision might be more understandable.

But that is not the case. This court routinely addresses arguments in

the face of procedural irregularities, which would otherwise render

the claims defaulted. See People v. McCarty, Nos. 100469, 100813

cons., slip op. at 22-23 (October 19, 2006) (reaching search warrant

specificity argument despite the fact that the issue was not contained

in the petition for leave to appeal); Wauconda Fire Protection

District v. Stonewall Orchards, LLP, 214 Ill. 2d 417 (2005) (allowing

petition for leave to appeal to stand despite of failure to comply with

Supreme Court Rule 315). Such an inconsistent application of

appellate rules and the doctrine of procedural default does not inspire

confidence in this court. Rather, it has the opposite effect. As our

Chief Justice recently noted in his address to the 2006 Illinois

Judicial Conference, “if our judgments are suspect or inconsistent, we

have nothing else to fall back on and our influence will diminish.” J.

Rooney, Thomas Wants Judiciary to Earn Respect, Chicago Daily

Law Bulletin, October 19, 2006. This opinion serves as yet another

window to the arbitrary nature of this court’s jurisprudence in this

area and reveals that our inconsistency can have dire effects on both

litigants and practitioners. Stated bluntly, there is no rhyme or reason

to the court’s actions from case to case as rules are relaxed for some

and strictly adhered to for others. I submit that this is not how a

reviewing court should operate.

In light of the above, I continue to strongly disagree with the

actions taken by the court in this case and would grant rehearing.