Mimi Coffey

Evidence obtained from the defendant’s blood is often the lynchpin in a Texas criminal case. And since the analysis of blood is such an intensely scientific process, no wonder the State (and often the Defense) employs an expert to testify about it. But before we consider the analysis of a blood specimen, we must first consider how the specimen was collected, and by whom it was collected, to determine its admissibility. The purpose of this article is to explore the law applicable when law enforcement conducts a blood draw. More specifically, is there a difference between a blood sample obtained via the implied consent statute and one obtained via a search warrant? Further, this article will analyze some critical terms used in the controlling blood-draw statute and the case law governing their application. That is, what is a “qualified technician” and “emergency medical technician,” or EMT?

Rethinking Johnston and Who Can Draw Blood Under Chapter 724

Some argue the first thing to examine is whether a blood specimen was collected with implied consent or via a search warrant. They insist that under prevailing case law, if the suspect refused consent and a warrant is issued, the means by which the blood sample was collected is not controlled by Texas statutes. Rather, the collection is examined under a reasonableness test pursuant to the Fourth Amendment and adopted in State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). See also Schmerber v. California, 384 U.S. 757 (1966). The flaw in this logic, however, is the assumption that Johnston’s reasoning was sound. When we deconstruct the opinion, we find a patchwork of conflicting ideas tenuously connected by leaps in logic, all of which lead the court to a conclusion alienated from the case law and statutes it relied upon to reach the decision.

Let’s first review the facts from Johnston. There, Ms. Johnston had been arrested for DWI and refused to provide a breath or blood specimen. As a result, Officers Stinson and Burkhart obtained a search warrant for a blood draw. Johnston at 651. Upon presenting her with the warrant, Ms. Johnston resisted. Consequently, both officers restrained her and collected the blood sample themselves. Id. at 651–652. Interestingly, one of the officers had received EMT certification, and both officers had completed a weekend training course on venipuncture. Id. Nonetheless, the trial court granted a motion to suppress the blood evidence, determining the officers were not “qualified technicians” under Section 724.017, Tex. Transp. Code. This statute outlines who may conduct blood draws. And at the time of Johnston, EMTs were not allowed to draw blood under prevailing statutes. Id. at 655. The trial court relied upon Schmerber v. California and held the blood draw violated the Fourth Amendment reasonableness standard.

By the time the Court of Criminal Appeals reviewed the case, the issue had been framed in a light far removed from Tex. Transp. Code § 724. In fact, the Court of Criminal Appeals determined that Chapter 724 did not even apply to search-warrant draws. The Court dedicated less than one page of thought to the idea and dismissed it under Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). Johnston at 660–661. Then the Court resorted to applying Schmerber. The Court held that when there was a search warrant for a blood specimen in Texas, Chapter 724 did not apply. Furthermore, the test of admissibility was whether the blood draw was reasonable under the Fourth Amendment. It finally reasoned that when two officers with minimal training restrained and drew blood from an individual at a police station and without a recording, that was reasonable under the Fourth Amendment. See, generally, Johnston. Despite the holding, the Court misread Beeman, misapplied Schmerber, and completely ignored the Texas statute designed to control law enforcement blood draws.

Regarding the statute itself, sections of Chapter 724 of the Texas Transportation Code refer to conditions that must be met if a breath or blood specimen is taken at the request or at the order of an officer. An “order” is not defined in the statute, but the term suggests that both consent and non-consent blood draws are controlled by the provisions of Chapter 724. Otherwise, if Chapter 724 was only intended to regulate voluntary blood draws, why did it also include language regulating information provided by officers before requesting specimens? Furthermore, even though it was overturned, sections of the statute also regulated mandatory blood draws obtained without consent. This suggested a legislative intent that Chapter 724 should regulate all blood draws, regardless of whether the draw was voluntary or not.

The Johnston opinion relied primarily on two other cases to reach its erroneous conclusion. First, it relied upon Beeman to conclude that Chapter 724 did not apply to cases where a search warrant was used to obtain a blood specimen. Johnston at 661. However, the Beeman holding was read too broadly by the Court. Rather, Beeman narrowly held that Section 724.013 did not absolutely prohibit the taking of a blood specimen if a person refused to provide one voluntarily. Beeman at 616. (But even this reading was questionable. Regarding separation of powers, it could be interpreted as legislating from the bench.) Additionally, the aspect of Beeman relied upon by the Johnston court also indicated that a search warrant made consent moot. In either event, none of this reasoning came close to deciding that a search warrant for blood removed the necessity that law enforcement comply with Chapter 724 before obtaining a blood sample from a suspect.

The other case Johnston erroneously relied upon was Schmer­ber v. California, 384 U.S. 757 (1966). Schmerber examined the exigent circumstances that might create an exception for the need to obtain a search warrant for blood. But again, this was a far cry from the issues the Johnston court was deciding. Schmerber involved a hospital doctor taking a blood sample from an unconscious suspect without a search warrant. Id. at 771. Significantly, this procedure has since been heavily legislated and questioned (if not outright condemned) in other cases at both national and state levels. See Missouri v. McNeely, 133 S.Ct. 1552 (2013), and State v. Villareal, 475 S.W.3d 784, 787 (Tex. Crim. App. 2014). Nevertheless, the reasonableness test of Schmerber was applied to determine whether the medical procedure of a doctor drawing a patient’s blood in a hospital was reasonable. Not surprisingly, the procedure was found to comply with Fourth Amendment standards. However, the Supreme Court also warned against the implications of blood draws conducted by the police in police stations:

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of a station house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Schmerber at 771–772.

In Johnston, the Court of Criminal Appeals’ reliance on Schmerber defied logic, especially since Schmerber specifically warned against the exact fact pattern in Johnston! Moreover, Johnston was made even more questionable by the application of Chapter 724 requirements in Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013), a case in which the blood draw was not voluntary (though it related to a now-defunct mandatory blood-draw statute). Consequently, defense attorneys should make sure to litigate Chapter 724 issues in any case involving blood draws, regardless of whether the suspect voluntarily submitted to the officer’s request, or whether the suspect refused and a search warranted was issued. Chapter 724 suggests it should apply in both situations, and any arguments to the contrary are unsupported and likely incorrect.

The Statute

Now that we’ve crafted a good argument why Chapter 724 applies to both voluntary blood draws and those depending upon a search warrant, let’s look at the chapter sections regulating who may draw the blood specimen. Tex. Transp. Code § 724.017(a) states in relevant part:

(a)  Only the following may take a blood specimen at the request or order of a peace officer under this chapter:

1)   A physician;
2)   A qualified technician;
3)   A registered professional nurse;
4)   A licensed vocational nurse; or
5)    A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic authorized to take a blood specimen under Subsection (c)

Tex. Transp. Code § 724.017(a)

The correct application of this statute should not be overlooked, as a mistake can often make blood specimens inadmissible, depending upon the qualifications of the person drawing the blood. Procedurally, State v Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011), decided that when the State sought to admit blood-alcohol concentration evidence at trial, as the proponent of evidence, it must fulfill all required evidentiary predicates and foundations including those of Section 724.017.

EMT Blood Draws

Courts have held that establishing the predicate of Section 724.017 was necessary before admitting evidence regarding a person’s blood-alcohol concentration offered by the State. Garcia v. State, 112 S.W.3d 839, 848 (Tex. App.—Houston [14th Dist] 2003, no pet). Regarding emergency medical technicians, or EMTs, this controlling statute recently changed. Prior to the current version of Section 724.017, EMTs were prohibited from conducting blood draws admitted in criminal cases. Nevertheless, case law created exceptions where an EMT could be considered a “qualified technician” under the previous version of Section 724.017(a). Importantly, some of this case law is still relevant today when determining what a “qualified technician” is under the statute. And thankfully, the legislature clarified the issue of an EMT’s ability to draw blood when the statute was amended in September 2013, at which time they added 724.017(a)(5) and 724.017(c). Subsection 724.017(a)(5) now states an EMT may conduct a blood draw, but only if they were authorized under Subsection (c). That subsection states:

A licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician-paramedic. The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, “medical director” means a licensed physician who supervises the provision of emergency medical services by a public or private entity that:

(1)  provides those services; and

(2)  employs one or more licensed or certified emergency medical technician-intermediates or emergency medical technician-paramedics.

…

(c-2)  If a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer, a peace officer must:

(1)  observe the taking of the specimen; and

(2)  immediately take possession of the specimen for purposes of establishing a chain of custody.

Tex. Transp. Code § 724.017(c) and (c-2).

In short, before an EMT is authorized to conduct a blood draw, they must: (1) be authorized by the medical director of their facility; (2) the medical director must be a licensed physician who supervises emergency medical services, and (3) the blood specimen has to be taken according to the protocol developed by said medical director for the taking of specimens at the request or order of a peace officer. Furthermore, if all these prerequisites are met, the officer must observe the collection of the specimen and immediately take possession of it. These prerequisites must be proven before such a sample is admissible. And not surprisingly, they are often overlooked by law enforcement agencies.

Qualified Technician Blood Draws

If the blood drawer does not meet one of the immediately obvious criteria of the statute (e.g., physician, registered professional nurse, or licensed vocational nurse), it is error to admit a blood sample without evidence demonstrating the individual was a “qualified technician” under Section 724.017(a). Cavazos v. State, 969 S.W.2d 454, 456 (Tex. App.—Corpus Christi 1998, pet ref’d). Essentially, a qualified technician is someone who possesses experience and training sufficient to meet the qualification threshold. When the State relies upon this subsection, however, they have to prove it—even when a phlebotomist drew the blood. Because “phlebotomist” was not listed among those individuals automatically qualified, a blood sample taken by a phlebotomist satisfied the statute only when the individual was proven to be a “qualified technician.” Torres v. State, 109 S.W.3d 602, 605 (Tex. App.—Fort Worth 2003, no pet.).

In Cavazos, the court held it was error to admit a blood sample taken by a phlebotomist employed at a hospital without evidence showing they were a qualified technician under Section 724.017(a). There, the State failed to make this showing because no one testified regarding the person’s qualifications. Furthermore, the record contained no evidence the blood was drawn by someone the hospital had determined to be qualified. Cavazos at 456. Nevertheless, phlebotomists have been held to be qualified technicians, but only after the phlebotomists, or their supervisors, testified regarding their qualifications. State v. Bingham, 921 S.W.2d 494, 495–96 (Tex. App.—Waco 1996, pet. ref’d.). See also, Krause v. State, 405 S.W.3d 82 (Tex. Crim. App. 2013)(analyzing whether an EMT was a qualified technician).

Defense attorneys should be wary of any discovery listing a “qualified technician” as the person who conducted a blood draw, as this is often an EMT (who is now regulated under a dif­ferent section of the statute) or an individual whose qualifications have not been established. One must look to extrinsic evidence to determine their qualifications, and case law provides guidance as to who may be a “qualified technician.” For instance, in Torres the individual who drew blood was determined to be a qualified technician after showing they had: (1) been practicing phlebotomy for 26 years; (2) were employed by the hospital specifically for phlebotomy; (3) were certified by the National Phlebotomy Association; and (4) had conducted “thousands and thousands and thousands of blood draws” throughout their career. Torres v. State, 109 S.W.3d 602, 605. In the Bingham case, the court determined someone was a qualified technician after showing they had: (1) completed four months of classes and phlebotomy training with a college, focusing primarily on anatomy and blood work; (2) they were employed as a phlebotomy technician; and (3) the Medical Technologist/Supervisor of the Hematology Lab at the hospital testified to their qualifications, which included multiple clinical rotations. State v. Bingham, 921 S.W.2d 494, 494–96. Lastly, in Krause it was proven the individual in question had been certified as an intermediate EMT and had been hired on at the hospital, where their primary duty was drawing blood and had been doing so for six years, averaging 50–100 blood draws daily. 405 S.W.3d at 84.

Looking to outside sources, it appears the closest thing to a “qualified technician,” as envisioned by the statute, is a Certified Phlebotomist. To obtain this certification,¹ individuals must pass courses in Medical Terminology and Human Disease/Pathophysiology. They then complete courses entitled Phlebotomy I and Phlebotomy II. Both of these are 6 weeks long with more than 100 combined contact hours, requiring passing grades on multiple quizzes and tests and completing numerous types of blood draws during class. After completing these courses, individuals must sit for board examinations accredited by the American Society of Clinical Pathology to earn the title Certified Phlebotomist. Finally, to maintain this certification, which renews every three years, a Certified Phlebotomist must complete continuing education courses.

Anyone claiming to be a “qualified technician” under Chapter 724 of the Texas Transportation Code should be thoroughly vetted. Common issues to look for include EMTs passed off as qualified technicians. Under the latest version of the statute, EMTs must be held to the strict standards outlined and discussed above. By far, though, the most egregious misapplication of this standard is when police attempt to pass off an individual with little or no training as a qualified technician. As noted in Johnston, in the Dallas–Fort Worth area, Dr. Del Principe offered weekend training courses to law enforcement officers, who might subsequently argue they were qualified technicians. But upon a closer reading of Johnston, we see the training offered to officers and jailers was simply a 14-hour weekend course that entailed performing only 50 blood draws. There was no other medical education or training prerequisite. Johnston at 652. Comparing this training with that required of Certified Phlebotomists, it was obvious such minimal instruction was a veiled attempt by law enforcement to sidestep the responsibilities placed on them by the legislature. But as defense attorneys, it is now imperative we hold judges, law enforcement personnel, and the prosecution to those high qualification standards set by Chapter 724 of the Texas Transportation Code.

The National Highway Traffic Safety Administration (NHTSA) developed the Standardized Field Sobriety Tests (SFSTs) in a vacuum. None of the original research simulated real-life testing conditions—e.g., a person performing the standardized field sobriety tests with the fear of going to jail. This missing premise negates the validity of the tests as far as the “divided attention tests.” The critical flaw of the SFSTs contributes to false convictions in the nationalized DWI testing protocol.

What is fear? Fear as a scientific term describes a behavioral, cognitive-emotional condition in which a set of biological adaptive responses activate in the presence of danger.¹ These physiological responses are hardwired to how our brain operates.² Fear is uncontrollably present in humans and animals when unpredictable, aversive events cause debilitating behavioral, cognitive, and somatic effects.³ Fear is controlled by ancient systems in the brain, primarily the amygdala, which acts relatively independent of later emerging higher cognitions.⁴ Numerous studies have linked the amygdala with fear.⁵ Much of fear’s effects on the amygdala are subconscious, with sensory information accessing the amygdala with minimal cortical processing.⁶ It is important to note that fear is not related to intelligence or its effects negated by alcohol. Alcohol reduces anxiety but not fear.⁷

Extreme experiments prove the symbiotic relationship of fear to the amygdala. In one, amygdala-lesioned rats approached a sedated cat, crawling over it and even nibbling on its ear.⁸ In another, rhesus monkeys had their amygdalae removed through a bilateral temporal lobectomy, resulting in no innate fear of snakes, such as avoidance or freezing—a condition known as “psychic blindness.”⁹ The function of fear is to motivate organisms to manage threats that jeopardize survival through the use of coping reactions clearly focused on escaping, attacking, and freezing.¹⁰ Fear potentiated startle (FPS), a variant on freezing, is an instinctive response to a combination of light and noise stimuli.¹¹ A person’s fear of police, at its basic element, is similar to that of rats to cats. In an experiment done by psychologists Blanchard and Blanchard, rats were exposed for 15 minutes to cats, causing each to scatter into burrows and avoid open areas, in addition to curtailing non-defensive behaviors such as grooming, mounting, eating, and drinking for the duration of the test.¹² The ability to focus one’s attention while in fear requires first an understanding of the complex reactions occurring involuntarily in the body and beyond one’s control.

Fear activates stress. Stress hormones will dramatically alter the turnover of several classes of neurotransmitters in the prefrontal cortex of the brain.¹³ The prefrontal cortex has extensive projections from the limbic system, the mammalian part of the brain involved in emotion, which explains why strong emotions can adversely impact the quality of executive functions, increasing the likelihood of imprudent or impulsive choices.¹⁴ A study of threatening and neutral images established that the orbitofrontal cortex, as part of the fronto-parietal network, has a key role in spatial attention; attention as well as emotion are two key components compromised in fear. ¹⁵

In particular, stress releases damaging hormones. Stress ac­ti­vates the hypothalamic-pituitary adrenal (HPA) axis, which releases the glucocorticoids (cortisol) by the adrenal cor­tex and negatively interferes with brain structures central to memory.¹⁶ Corticotrophin (CRH) released with physical and emo­tional stressors causes increased blood glucose, heart rate, and blood pressure, in addition to increased tolerance of pain and changes in motor activity.¹⁷ Along with these physical reactions, an increase in glucocorticoid secretion is associated with immobilization or freezing.¹⁸ Advances in the understanding of neuroendocrine and neurochemical behavioral responses have come a long way since 1911, when Walter Cannon confirmed the secretion of epinephrine after an emotional response with fight-or-flight.¹⁹

Recently it was shown that norepinephrine and dopamine, also interactively involved in stress induced arousal, have effects on one’s prefrontal cognition as well.²⁰ The problem with the body’s natural reactions as a result of fear or stress is the deficits that result in the “loss of normal mental and physical faculties” judged for intoxication in a DWI. It is a recognized fact that when the basoleteral part of the amygdala is activated (such as in fear) and glucocorticoids are released, stress-induced retrieval deficits occur.²¹ Retrieval deficits result in a negative effect on memory.²² The compromised memory retrieval is due to the stress hormones and neurotransmitters switching the brain into a “memory consolidation” state allowing for strong recall of the event, thereby compromising memory retrieval during the event.²³

This makes sense, as being able to recall and avoid threatening events is necessary for evolutionary survival, explaining why our brains’ circuitry is programmed in this manner. Memory retrieval is critical in a DWI investigation for tasks such as NHTSA Phase II (e.g., alphabetic and numeric countdown) exercises. Such exercises are often times requested before exiting the vehicle so that the officer may test short-term memory recall prior to testing the subject’s ability to memorize the instructions for the walk and turn and one leg stand tests. Participants in a study receiving cold pressor stress before memory retrieval recalled fewer words than the no-stress control.²⁴ In another stress study done in 2009, a glucocorticoid (cortisol) administered to subjects impaired their memory during a weeklong word recall experiment.²⁵

Memory is directly connected with the brain’s processing of emotion and attention. Emotion and attention can interact either by emotion modulating attentional processing or attention influencing emotional processing.²⁶ In a DWI scenario, the emotion of fear precedes and interrupts task attention. Emotion functions importantly to help guide attention to emotionally valuable stimuli,²⁷ none of which is beneficial in a DWI investigation. Emotions result in abnormal excitation of the nervous network, which induces changes in heart rate and secretions or interrupts the normal relationship between the peripheral nervous system and the brain.²⁸ Simply put, emotions affect the central nervous system—the same system evaluated for “normalcy” in a DWI. First, emotional information receives priority in neural processing.²⁹ Evidence suggests that once emotional stimuli are processed, visual attention is often sustained.³⁰ One’s inability to “think straight” while mad or “black out” in fear is due to emotional information receiving privileged access to attention and awareness.³¹

To be “paralyzed by fear” is due to emotions exerting their influence by modulating activity in regions involved in cognitive control.³² Specifically, emotional signals modulate parietal and frontal brain regions involved in attention control.³³ This loss of attention control impedes the processing of task-relevant stimuli.³⁴ When the field sobriety tests were developed, the testing subjects had no emotional detractors to interfere with their ability to process the directions. One cannot perform the tests correctly without adhering to the proper instructions such as “keep your arms by your side” or “on the ninth step keep your lead foot planted and take a small series of steps.” Emotions are so powerful, evidence suggests, that outside of “top down” mental processing, some automatic “preattentive” neural processing of emotional stimuli exists as well³⁵ (Ohman proved this in a study that had snakes hidden in pictures).³⁶ Psychology literature reports several published studies that document the slowed brain processing when emotions are involved. One asked subjects to simply identify a target as a circle or square and found that when the shapes were preceded by emotional versus neutral images, this slowed down the identification process.³⁷ Another proved that fear-conditioned cues captured subjects’ attention, making it harder and slower to orient one’s self to proper locations in a spatial attention/emotion study.³⁸ In another, participants found it more difficult to name colors of pictures or words when they had an emotional meaning attached to them, further proving the emotional hindrance is involuntary.³⁹

Emotion potentiates the effect of attention.⁴⁰ Attention de­fined is the cognitive control involved in maintaining task rules in working memory, monitoring reward and error rates, fil­ter­ing distracters, and suppressing prepotent and competitive re­sponses.⁴¹ Weak attentional control increases distractibility, causing attentional lapses, impulsivity, and attentional fatigue.⁴² When a person loses the ability to orient attention towards relevant stimuli, sensory information can no longer be processed properly.⁴³ This processing occurs in the prefrontal cortex,⁴⁴ the same place shown to receive activation from threat-related signals.⁴⁵ The reason why one cannot focus attention during fear is because the amygdala activates the noradrenergic system projecting into and interfering with the locus coeruleus, which modulates attention.⁴⁶

Without the effects of fear factored into the equation, DWI investigations attempt to prevent one from driving a vehicle when their central nervous system is impaired to the extent defined by the law for intoxication.⁴⁷ There are two central flaws to this end result. Dr. Marcelline Burns, developer of the SFSTs, has admitted that the tests were never designed to detect impairment and one’s ability to safely operate a motor vehicle.⁴⁸ She attempts to bridge this fatal blow by advocating her second central flaw—that the field tests are designed for judging one’s ability to divide their attention.⁴⁹ Does driving a car involve the divided attention used as an objective in the field sobriety tests? Driving often consists of monitoring external stimuli for certain classes of events (pedestrians, looming cars, etc.), with the driving and thinking representing a case of “simultaneous performance.”⁵⁰ There are specifically two neural conclusions about driving: (1) perceptual monitoring occurs at the same time as central pro­cess­ing and (2) central processing can be interrupted quickly on the basis of detections made while scanning and monitoring the environment.⁵¹ Field sobriety tests under fear conditions do not fairly represent simultaneous perception monitoring and central processing.

When it comes to divided attention tests, many tasks interfere with each other quite drastically, although they are neither intellectually challenging nor physically incompatible.⁵² One comprehensive analysis on the topic, published in the scholarly Psychological Bulletin referred to by specialists in the field of psychology, determined “the results show that people have surprisingly severe limitations on their ability to carry out simultaneously certain cognitive processes that seem fairly trivial from a computational standpoint.”⁵³ Basic science counterbalances ex­peri­ments with controls. If the control studies show unsuitability for divided attention without alcohol, much less negated by the presence of fear, it is time the National Highway Traffic Safety Administration be held accountable for substandard and ineffective protocol and testing measures.

Attention at its core is simply holding information in the working memory, necessitating a basic understanding of working memory as it relates to fear.⁵⁴ As mentioned above, memory retrieval processes are impaired with a high level of circulating glucocorticoids,⁵⁵ which occurs in concert with changes in other neurotransmitter systems.⁵⁶ These neural systems extend from the frontal lobes into the primary cortices, where attention and working memory show considerable overlap.⁵⁷ To paraphrase, in normal cognition, memory consolidation and retrieval processes occur simultaneously; thus, a single glucocorticoid rush can alter these reactions.⁵⁸ Specifically, stress levels of glucocorticoids influence the prefrontal cortex, impairing short-term memory retrieval.⁵⁹ In one study, rats experienced foot-shock exposure for 30 minutes, resulting in a temporary memory loss.⁶⁰ In a hu­man study, subjects tested after glucocorticoid elevations showed the same impaired memory retention under various test­ing conditions,⁶¹ including the recall of previously learned words.⁶² The bottom line, emotionally distracting scenarios are associated with a decrease in dorsal lateral prefrontal cortex ac­tivity, along with a concomitant drop in working memory per­formance.⁶³

Although man is the most highly developed species, we are still animals largely controlled by instincts, one of the greatest of which is fear. The processing of fear-relevant stimuli was evolutionarily optimized for survival.⁶⁴ Our fear responses are innate, species-typical responses that are not learned or voluntary.⁶⁵ These responses kick into full gear when we see the flashing lights behind us, hear the sirens, and are approached by men and women in uniform carrying guns. Known as tonic immobility, profound temporary motor inhibitions both physically and mentally occur when we perceive ourselves to be in these constraining and dangerous situations.⁶⁶ To disregard these natural reactions, particularly in the scenario of a DWI investigation where testing is conducted, is to ignore science, which short-circuits, truth, and justice.

The social sciences have recognized that people who are depressed have attentional inflexibility, which is linked to impairment in cognitive control mechanisms.⁶⁷ People with post-traumatic stress disorder (PTSD), in the same light, fail to maintain and direct proper attention when faced with threatening information.⁶⁸ Modern science has recognized that with advances in brain research, we can pinpoint some of the mechanisms at work that cause a loss of normal mental and physical faculties in emotional states. Whereas doctors have cognitive goals for their patients in these emotional states, lawyers and judges must learn to differentiate such states to prevent false convictions, particularly in the area of intoxication related offenses. There are enormous intellectual differences between the worlds of science and law in the basic premises concerning causality and certainty.⁶⁹ It is time to close the gap.

Notes

1. J. J. Kim & K. M. Myers, Fear: Psychological and Neural Aspects, 8 International Encyclopedia Of The Social & Behavioral Sciences 5428, 5428 (2001).

2. See Id. at 5430.

3. Ruben P. Alvarez et al., Phasic and Sustained Fear in Humans Elicits Distinct Patterns of Brain Activity, 55 Neuroimage 389, 389 (2011).

4. Arne Ohman, The Role of the Amygdala in Human Fear: Automatic Detection of Threat, 30 Psychoneuroendocrinology 953, 954 (2005).

5. See generally Steve R. Makkar et al., Review: Behavioral and Neural Analysis of GABA in the Acquisition, Consolidation, Reconsolidation, and Extinction of Fear Memory, 35 Neuropsychopharmacology 1625, 1632 (2010); Joseph LeDoux, The Emotional Brain, Fear, and the Amygdala, 23 Cellular and Molecular Neurobiology 727, 727 (2003); Patrik Vuilleumier, How Brains Beware: Neural Mechanisms of Emotional Attention, 9 Trends in Cognitive Sciences 585, 588 (2005); Ralph Adolphs, What Does the Amygdala Contribute to Social Cognition?, 1191 The Annals of the New York Academy of Sciences 42, 42 (2010).

6. See Ohman, Role, supra note 4 at 954; Ralph Adolphs, Fear, Faces, and the Human Amygdala, 18 Current Opinion in Neurobiology 166, 167 (2008).

7. See Christine A. Moberg & John J. Curtin, Alcohol Selectively Reduces Anxiety but not Fear: Startle Response During Unpredictable vs. Predictable Threat, 118 Journal of Abnormal Psychology 335, 345 (2009).

8. Rene Misslin, The Defense System of Fear: Behavior and Neurocircuitry, 33 Neurophysiologie Clinique 55, 61 (2003).

9. Id.

10. Arne Ohman et al., On the Unconscious Subcortical Origin of Human Fear, 92 Physiology & Behavior 180, 180 (2007) (freezing “is a behaviorally quiescent state that involves scanning of the environment to assess risks and opportunities”).

11. See Amanda R. de Oliveira et al., Conditioned Fear Response Is Modulated by a Combined Action of the Hypothalamic-Pituitary-Adrenal Axis and Dopamine Activity in the Basolateral Amygdala, European Neuropsychopharmacology (forthcoming).

12. Misslin, supra note 8 at 58.

13. See Robert M. Sapolsky, The Frontal Cortex and the Criminal Justice System, 359 Philosophical Transactions of the Royal Society B 1787, 1792 (2004).

14. Id.

15. See Jorge L. Armony & Raymond J. Dolan, Modulation of Spatial Attention by Fear-Conditioned Stimuli: An Event-Related fMRI Study, 40 Neuropsychologia 817, 824 (2002).

16. Tom Smeets, Acute Stress Impairs Memory Retrieval Independent of Time of Day, 36 Psychoneuroendoctrinology 495, 495 (2011).

17. See T. M. O’Connor et al., The Stress Response and the Hypothalamic-Pituitary-Adrenal Axis: From Molecule to Melancholia, 93 Quarterly Journal of Medicine 323, 328 (2000).

18. Thierry Steimer, The Biology of Fear-and Anxiety-Related Behaviors, 4 Dialogues in Clinical Neuroscience 231, 234 (2002).

19. See R. McCarty, Fight-or-Flight Response, in 2 Encyclopedia of Stress 62, 62 (2d ed. 2007).

20. See Anreas Boehringer et al., A Combination of High Stress-Induced Tense and Energetic Arousal Compensates for Imparing Effects of Stress on Memory Re­trieval in Men, 13 Stress 444, 451 (2010).

21. See Smeets, supra note 16 at 500.

22. See Marie-France Marin et al., Modulatory Effects of Stress on Reactivated Emotional Memories, 35 Psychoneuroendorinology 1388, 1388 (2010).

23. Benno Roozendaal, Stress and Memory: Opposing Effects of Glucocorticoids on Memory Consolidation and Memory Retrieval, 78 Neurobiology of Learning and Memory 578, 590 (2002).

24. See Smeets, supra note 16 at 495.

25. See Marin, supra note 22 at 1389.

26. Armony & Dolan, supra note 15 at 817.

27. See N. Fragopanagos & J. G. Taylor, Modelling the Interaction of Attention and Emotion, 69 Neurocomputing 1977, 1982 (2006).

28. See Steimer, supra note 18 at 231.

29. See Marie T. Banich et al., Cognitive Control Mechanisms, Emotion & Memory: A Neural Perspective with Implications for Psychopathology, 33 Neuroscience & Biobehavioral Reviews 613, 614 (2009).

30. See Greg Hajcak et al., The Dynamic Allocation of Attention to Emotion: Simultaneous and Independent Evidence from the Late Positive Potential and Steady State Visual Evoked Potentials, Biological Psychology (2011), available at http://www.sciencedirect.com/science/article/pii/S0301051111002973.

31. See Vuilleumier, How Brains Beware, supra note 5 at 586.

32. See Banich et al., supra note 29 at 620.

33. Vuilleumier, How Brains Beware, supra note 5 at 591.

34. See Hajcak et al., supra note 30.

35. Patrik Vuilleumier et al., Effects of Attention and Emotion on Face Processing in the Human Brain: An Event-Related fMRI Study, 30 Neuron 829, 829 (2001).

36. See Ohman et al., Unconscious, supra note 10 at 182.

37. See Hajcak et al., supra note 30.

38. See John G. Taylor & Nickolaos F. Fragopanagos, The Interaction of Attention and Emotion, 18 Neural Networks 353, 358 (2005).

39. See Vuilleumier, How Brains Beware, supra note 5 at 585.

40. Ohman et al., Unconscious, supra note 10 at 183.

41. Martin Sarter & Giovanna Paolone, Theoretical Review-Deficits in Attentional Control: Cholinergic Mechanisms and Circuitry-Based Treatment Approach, 125 Behavioral Neuroscience 825, 825 (2011).

42. Id.

43. See Christina Lucas & Johan Lauwereyns, Selective Working Memory Disables Inhibition of Visual Features, 54 Experimental Psychology 256, 256 (2007).

44. See Taylor & Fragopanagos, supra note 38 at 353.

45. See Belinda J. Liddell et al., A Direct Brainstem-Amygdala-Cortical “Alarm” System for Subliminal Signals of Fear, 24 Neuroimage 235, 240 (2005).

46. Vuilleumier, How Brains Beware, supra note 5 at 592.

47. See Tex. Penal Code § 49.01 (“not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more”).

48. See Lori Raye Court Reporters, Examination under Oath of Marcelline Burns, 1, 39–40 (April 17, 1998).

49. See Jack Stuster & Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (Contract No. DTNH22-95-C-05192) U.S Department of Transportation and National Highway Traffic Safety Administration, 1, 32 (August 1998).

50. See Harold Pashler, Dual-Task Interference in Simple Tasks: Data and Theory, 116 Psychological Bulletin 220, 238 (1994).

51. See Id.

52. See Id. at 220.

53. Id. at 241.

54. See Lucas & Lauwereyns, supra note 43 at 262.

55. See Roozendaal, supra note 23 at 591.

56. See Id. at 588.

57. See Lucas & Lauwereyns, supra note 43 at 256.

58. See Roozendaal, supra note 23 at 588.

59. See Id. at 587.

60. Id. at 585–86. (Rats in the study were trained in a water maze to find a platform located in a specific location. Immediately after exposure to foot-shock, the rats were unable to readily identify the location of the platform previously known to each rat tested. However, after a short time elapsed following the foot-shock, rats were able to easily find the platform location again.)

61. See Id. at 585.

62. See Id. at 587.

63. Banich et al., supra note 29 at 618.

64. See Taylor & Fragopanagos, supra note 38 at 356.

65. See LeDoux, supra note 5 at 728.

66. Misslin, supra, at 59.

67. See Banich et al., supra note 29 at 620.

68. See Id. at 624.

69. See Sapolsky, supra note 13 at 1789.