¶1Dissenting Opinion,
¶2I agree with the majority and the Court of Special Appeals that “testimony about the HGN test constituted expert testimony,” and “is admissible in evidence pursuant to Md. Rule 5-702.” I do not agree, however, that the Circuit Court admitted the testimony about Respondent’s performance on the HGN test “without first making a preliminary legal determination that [Trooper] Linger was qualified to testify as an expert witness.”
¶3The record shows that the Circuit Court told the prosecutor that, “[i]f you are going to use the horizontal gaze nystagmus test, you must lay a foundation that the witness is qualified to administer it.” The record also shows that the foundational requirements had been satisfied before the Circuit Court stated, “go ahead” to the prosecutor, and overruled the objection to Trooper Linger’s testimony.
¶4It is of no consequence that the Circuit Court did not expressly state that it found Trooper Linger to be an “expert,” because many lawyers and judges strongly believe that it is the better practice for the trial judge to avoid using that term in the presence of the jury. In the case at bar, the Circuit Court in essence stated to the prosecutor, “you may proceed [to present the expert testimony].” I am persuaded that this ruling was neither erroneous nor an unfairly prejudicial abuse *700of discretion. I would therefore affirm the judgment of conviction.