As part of a traffic stop, the police may try to determine whether the driver may be impaired by alcohol or drugs. Law enforcement should have probable cause to make an arrest before taking a driver into custody on suspicion of drunk driving. One of the ways police gather evidence for probable cause is through roadside tests. Field sobriety tests can give police the evidence they are looking for to make a DUI arrest.
What Is a Hand-Pat Test?
The hand-pat test is a non-standardized field sobriety test to evaluate someone for impairment under drugs or alcohol. Also called the palm pat test, this roadside test is not used as often as the standardized field sobriety tests (SFSTs), which include walk-and-turn (WAT), one-leg-stand (OLS), and horizontal gaze nystagmus (HGN).
Some law enforcement agencies, including the U.S. Coast Guard, still used the palm pat test as part of the field sobriety test performance support. According to the Coast Guard's FST report, the instructions for a palm pat test consist of the following:
- Place your hands palm to palm with one hand up and one hand down, as demonstrated by the examiner.
- Remain in this position while the test is explained. Do you understand?
- When told to begin, turn the top hand over and count out loud “one,” then turn the hand back over and count out loud “two,” counting only when the hands make contact, as demonstrated by the examiner
- Repeat this, speed up as you go, and do not stop until told. Make sure to keep your hands and fingers parallel during each pat. Do you understand?
- Begin. If necessary, told to speed up.
- The examiner observes for at least 10 seconds, but not more than 15 seconds.
If this sounds confusing, you are not alone. The instructions are part of the evaluation, which can be difficult to follow for someone who is impaired. Unfortunately, it can also be difficult to follow for someone who is not impaired but may be distracted, anxious, afraid, or uncomfortable because of some other physical condition.
The observer testing the subject evaluates the test subject on the instruction stage and performance stage, marking down for failing the test. Evaluation criteria include 2 or more of the following clues:
- Unable to follow instructions
- Started at the wrong time
- Did not count as instructed
- Rolled hands
- Double pat
- Chopped pat
- Other improper pat
- Did not increase speed
- Rotated hands
- Stopped before told
Problems With a Hand Pat Test
Like other field sobriety tests, there are problems with relying on the results of the hand pat test to evaluate a driver for impairment. There are plenty of false positives that could make a driver "fail" these tests even if they are completely sober. There may also be drivers who are well over the limit who can pass these tests.
Drivers may have medical conditions that can make it difficult to "pass" roadside tests. This includes conditions that affect their balance or stability. According to the Mayo Clinic, diseases and conditions that can cause balance problems include:
- Migraines
- Motion sickness
- Head injuries
- Acoustic neuroma
- Parkinson's disease
- Peripheral neuropathy
- Inner ear problems
- Persistent postural-perceptual dizziness
- Meniere's disease
Some medications can also have side effects of loss of balance or unsteadiness. Even a driver's emotional state can cause them to have trouble focusing or following instructions, including anxiety or post-traumatic stress disorder (PTSD). The environment can also impact these tests, such as testing in the dark, in cold temperatures or high heat, uneven roadside surfaces, or flashing lights.
Do I Have to Do the Roadside Tests in California?
No. You do not have to do the roadside field sobriety tests as part of a traffic stop in California. There are no penalties for refusing the FSTs, even if the police officer makes it seem like you should. There are plenty of reasons why you may not want to submit to these roadside tests. Even the standardized tests, which are supposed to be more accurate, have their own problems.
Even if you feel like you are not over the limit and you feel like you are fully able to pass these tests with flying colors, you may still end up under arrest if the police officer has reason to believe you are impaired. The officer may have already decided to arrest you before the roadside tests and is only doing them for additional evidence to support your arrest. Reasons the officer may have to suspect you are impaired may include:
- Alcohol on the breath
- Smell of marijuana in the care
- Bloodshot or watery eyes
- Unsteadiness
- Slurred or confused speech
- Fumbling for license or registration
- Admits to drinking
- Visual evidence of alcohol or drugs in the vehicle
Challenging Field Sobriety Tests in Court
If you were arrested on suspicion of drunk driving or drug DUI in California, you can challenge the field sobriety test results. Talk to your California DUI defense lawyer about defense strategies to keep unfair evidence out of court, get your charges reduced, or have the charges dropped.
You may think the evidence against you looks bad and you should just plead guilty to get lesser penalties. However, make sure you understand your legal rights and defense options before pleading guilty. Your attorney may be able to challenge the legality of the traffic stop, show the officer didn't have probable cause, or even challenge the chemical test results that showed you were over the limit.
Talk to an East Bay DUI Defense Lawyer About Winning Your Case
Lynn Gorelick has more than 39 years of East Bay DUI defense experience and understands how much is at stake after a drunk driving arrest. She understands how to approach the individual facts of each case for the greatest chance of success to keep her clients out of jail. If you are facing DUI charges anywhere in Oakland, Alameda County, or Contra Costa County, contact Lynn Gorelick.
