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OPINION
OWEN, J.--These two cases involve the issue of whether a police officer can administer a horizontal gaze nystagmus test [*2] as a field sobriety test and testify to its result in a prosecution for violation of Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol) and/or section 23152, subdivision (b) (driving with excess blood alcohol). The cases were previously taken under submission and a certification to the Court of Appeal was issued. Certification was denied and the cases were deemed resubmitted. Having consolidated them for the purposes of appeal, this court now rules as follows.
The judgment in People v. Leahy (Crim. A. No. 7825) is reversed in part and affirmed in part, and the matter remanded for further proceedings in accordance with the opinion expressed herein.
The judgment in People v. Tatar (Crim. A No. 8025) is affirmed.
FACTS
The defendants were charged with violation of Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol (DUI)) and section 23152, subdivision (b) (driving with excess blood alcohol). Each brought a motion in limine to exclude the results of the horizontal gaze nystagmus (HGN) field sobriety test. The motions were denied; as to Tatar, the judge expressed reliance on People v. Ojeda (1990) 225 Cal.App.3d 404 [275 Cal.Rptr. 472]. [*3] At trial, the attesting officers testified to the results of the HGN test and its relationship to alcohol consumption despite the defendants' continuing objections of lack of foundation and lack of expertise. No showing was made that the HGN test is generally accepted in the scientific community.
People v. Leahy
The arresting officer had nine and one half years' experience and had made thousands of DUI stops. He testified that he had been trained in administering the HGN test but did not discuss the nature of the training. When he makes a stop, he first administers a HGN test. If it is negative, he releases the suspect; if it is positive, he does additional field sobriety tests. No showing was made that the HGN test is generally accepted in the scientific community.
The officer observed Leahy make a wide sweeping turn from a side street onto a main artery. He was paced at 55 miles per hour in a 25-mile zone. The officer stopped Leahy and observed that his eyes were red and watery, his speech was thick and slurred, his balance was unsteady, his breath and person smelled of alcohol, and his face was red and flushed. Leahy admitted to having had two beers and one vodka and cranberry.
[*4] Leahy was given three field tests, including the HGN test. He swayed during the internal clock test but performed it adequately, his gaze was not smooth on the HGN test, and he recited the alphabet correctly.
The officer testified that he was not convinced that Leahy was under the influence based on his eyes, face, speech, and the smell of alcohol; he determined that Leahy was under the influence only after performing the HGN test.
Leahy was convicted on both charges.
People v. Tatar
The arresting officer had 16 months' experience and 40 hours of training in symptoms of intoxication, including 8 hours of training devoted to HGN. He does not rely solely on the HGN test to determine whether a driver is under the influence because of other possible causes for adverse test results.
The officer observed Tatar driving at approximately 11 p.m. on a freeway off-ramp at a high rate of speed; his vehicle's front end dipped hard at the end of the ramp, his brakes locked, he skidded 20 feet through a red light and across the crosswalk, and he stopped 10 feet into the intersection. The officer smelled alcohol in the car. Tatar admitted to drinking between 4:30 p.m. and 11:15 p.m. His [*5] eyes were red and watery, his speech was slurred, and he had a hard time standing up. He failed the HGN test and all of the other five field sobriety tests administered. The officer opined that Tatar was under the influence based on the way he had been driving, his physical symptoms, and his field sobriety test results.
Tatar testified that he had had five or six beers between 3:30 p.m. and 10 p.m.
Tatar was convicted on both charges.
DISCUSSION
I
Admissibility of Test Results
An inability of the eyes to maintain visual fixation while turned from side to side (jerking or bouncing) is known as horizontal gaze nystagmus. Certain types have been associated with intoxication by some investigators. ( People v. Ojeda, supra, 225 Cal.App.3d 404, 406.)
The California Supreme Court in People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240], applying Frye v. United States (D.C. Cir. 1923) 54 App. D.C. 46, 293 Fed. 1013, held that HN1Go to the description of this Headnote.for evidence based on a new scientific technique to be admissible, there must be a preliminary showing of general acceptance [*6] of the new technique in the scientific community. ( Kelly, supra, at p. 30.) This is known a the Kelly/Frye test. The Kelly/Frye test does not apply if the testimony of the officer is admissible on some basis other than as scientific testimony. California cases conflict on whether an officer is qualified to testify on the relationship between HGN and intoxication without consideration of the Kelly/Frye factors.
In People v. Williams (1992) 3 Cal.App.4th 1326 [5 Cal.Rptr.2d 130], the court stated that HN2Go to the description of this Headnote.the result of an HGN test is not within common knowledge and cannot be the subject of lay testimony. ( Id. at pp. 1332-1333.) Despite the officer's testimony that he had correlated the HGN test results to later blood or urine tests in all of the over 125 arrests he had made, the court felt that he was not competent to draw a correlation between eye movement and intoxication without some scientific explanation as to how the two are linked.
In stating as a matter of law that an officer is not competent to render a scientific opinion, [*7] the court expressly disagreed with People v. Ojeda, supra 225 Cal.App.3d 404. The Ojeda majority had found an experienced officer competent to testify because he had observed a correlation between the results and his judgment of the intoxication of persons he had arrested over a period of time. The court equates the HGN test results with other field sobriety tests, such as the one-legged balance test. (Id. a p. 408.)
The Ojeda majority found that the officer was an expert, not because of his scientific knowledge, but because of his experience. The court stated: "It is hardly surprising that police officers who deal daily with intoxicated persons become expert at recognizing the physical effects of intoxication, and that they learn to perceive effects somewhat more subtle than those apparent to the amateur. This does not make them scientists. A scientific study of HGN would rely on systematic experimentation, and would typically attempt some quantification of the relationship between HGN and blood alcohol. Deputy Ringen drew his generalization from experience, not from experimentation, and did not attempt to quantify the relationship he observed." [*8] People v. Ojeda, supra, 225 Cal.App.3d at p. 408.)
Because People v. Ojeda, supra, 225 Cal.App.3d 404 and People v. Williams, supra, 3 Cal.App.4th 1326 reach different results, this court is free to follow either. We deem Williams to be the better reasoned opinion. Ojeda's analysis is based on a misunderstanding of the scientific process, the essence of which is drawing a correlation between two apparently unrelated phenomena and discovering a relationship. The very act of using experience to conclude that eye movements are related to intoxication is the scientific process. The fact that it is not quantified merely shows poor scientific methodology.
Also, under the reasoning of the Ojeda majority, an officer becomes an expert to testify to the validity of any test based on some amorphous understanding of what a drunk is, without any correlation with objective tests. The very facts that Ojeda uses to distinguish the test as "unscientific" completely undermine everything People v. Kelly, supra, 17 Cal.3d 24 [*9] stands for.
HGN tests cannot be equated with other field sobriety tests; these are based on common understanding that intoxicated persons are unsteady, unable to concentrate, and have impaired perceptions. There is no common understanding that such persons have jerky eye movements.
In People v. Loomis (1984) 156 Cal.App.3d Supp. 1 [203 Cal. Rptr. 767], an officer testified to the defendant's blood-alcohol level based on his experience with the HGN test and its correlation to blood test results in 1,000 cases. The court held that the Kelly/Frey standard applied because the officer was attempting to testify to a precise quantified correlation between eye movements and percentage of blood alcohol. Here, there is no attempt at quantification, so the case is not on point. However, we agree with its application of the Kelly/Frye standard.
Several other jurisdictions have considered the issue. Some courts have held, like Ojeda, that the test is a "field sobriety" test and no foundation need be laid. (See e.g., Lancaster v. State (Tex.Ct.App. 1988) 772 S.W.2d 137.) We decline to follow these cases. Some have held that [*10] the Frye standard did not have to be met when the test was used for the limited purpose of establishing probable cause for arrest. (See, e.g., State ex rel. Hamilton v. City Court of City of Mesa (1990) 165 Ariz. 514 [799 P.2d 855].) No probable cause issue has been raised, and we do not express an opinion on the issue.
Some courts have found the test valid based on evidence. (See e.g., State v. Superior Court (Blake) (1986) 149 Ariz. 269 [718 P.2d 171, 60 A.L.R.4th 1103].) Others have done so based on the findings of other courts. (See e.g., State v. Armstrong (La.Ct.App. 1990) 561 So.2d 883.) However, we do not feel this to be appropriate when two California appellate courts dealing with HGN test issues have declined to take this approach. Therefore, we will follow those cases that have found the test scientific and rejected testimony due to failure of the People to present evidence of validity. (See, e.g., State v. Reed (1987) 83 Ore.App. 451 [732 P.2d 66].)
We thus held that HN3Go to the description of this Headnote.a police officer is not qualified merely [*11] by reason of his training and experience as an officer to testify to HGN test results for purposes of establishing that a defendant is guilty of a violation of Vehicle Code section 23152. For such evidence to be admissible, there must be a competent showing by the People that the test is generally accepted in the scientific community as an indicator of intoxication.
In the cases before us, we hold that the error in admitting the testimony of the officer in Leahy was not harmless and remand for further proceedings. However, we hold that the error in Tatar was harmless and therefore affirm the judgment.
II
Reversible Error
The Watson standard applies to the erroneous admission of scientific evidence. ( People v. Kelly, supra 17 Cal.3d 24, 40.) HN4Go to the description of this Headnote.The appellant must show that it is reasonably probable that a more favorable result would have been reached but for the error. ( People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
Leahy
The jury probably concluded that the test results were needed to establish intoxication beyond a reasonable doubt. The blood test result was only .02 [*12] percent above minimum, within the margin of error for such a test. Leahy did not fail any of the other field sobriety tests. The officer testified that the reckless driving, red eyes and face, impaired speech, smell, admission of having been drinking, and unsteadiness were insufficient to support the conclusion that Leahy was under the influence; he would have been released had he passed the HGN test. Given this strong testimony of the importance of the test, this court feels that more probably than not the jury would have reached a different conclusion but for the admission of HGN test results.
Tatar
Tatar has not met his burden to establish prejudice. He did not address the issue of prejudice in his opening brief and did not file a reply when it was raised by the People. Any claim of prejudice is waived. ( Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1440-14, fn. 1 [260 Cal.Rptr. 148].)
Also, the record supports the judgment. Tatar admitted to consuming five or six beers that evening; the officer testified to his driving errors, watery eyes, slurred speech, difficulty in standing, and failure on every one of the other five field tests [*13] administered. His breath test results were .17 percent blood alcohol, over twice the minimum. On this record, the court cannot find it more probable than not that the jury would have reached a different conclusion but for the admission of the HGN test results.
III
Excess Blood Alcohol
Both judgments of conviction of violation of Vehicle Code section 23152, subdivision (b) (driving with excess blood alcohol) are affirmed. Neither defendant has attempted to show how the error in admitting evidence of the HGN test could have affected the jury's consideration of this violation, which depends on breath test results alone. Nor was any argument raised concerning probable cause to arrest; any such argument is waived.
IV
[NOT CERTIFIED FOR PUBLICATION]
DISPOSITION
The judgment of conviction of violation of Vehicle Code section 23152, subdivision (b) is affirmed, and the judgment of conviction of Vehicle Code section 23152, subdivision (a) is reversed in People v. Leahy (Crim. A. No. 7825). The matter is remanded for further proceedings in accordance with this opinion.
The judgment of conviction of violation of Vehicle Code sections 23152, subdivision (a) and 23152, subdivision (b) is [*14] affirmed in People v. Tatar (Crim. A. No. 8025).
In Crim. A. No. 7825: Jackman, Acting P. J., and Bedsworth, J., concurred.
In Crim. A. No. 8025: Rylaarsdam, P. J., and Bedsworth, J., concurred.
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