For DWI cases that are total refusals by the defendants(No SFSTs, No breath, No blood) we have been trying to use the various defendant signatures(Miranda, DIC 24, court documents) to show how the loss of physical faculties. The judge is saying that without scientific evidence the signatures will not be allowed in.

Does anyone have any cases or tips on how to handle this?

SH

I do not know of any caselaw on this but I would suspect that you may need samples of signature and/or handwriting from other points in time to use as a comparison, if not for legal predicate at least to get the jury to consider it. Samples can be obtained from various sources such as the driver's license, divorce records, real property records, etc. I suspect a juror will want something to compare with as there are people who have horrible handwriting as a matter of course, mine for one or the proverbial doctor's handwriting.

TRE 38.27: "It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath."

The jury is the proper trier of fact for questions regarding handwriting. I will agree though, that you're going to have to provide them something to compare it WITH. I've personally used the reset/band setting sheet for this purpose, in part because I could then call the court coordinator to testify that they personally watched THIS defendant sign their name, and they did not appear intoxicated at the time. That gives you a nice contrast to the officer testifying as to the defendant signing their name while intoxicated.

I can't find any caselaw directly on point. The closest I can find is Miffleton v. State, 777 S.W.2d 76 at 79-80 (Tex.Cr.App.,1989). This case analogizes blood draws to handwriting exemplars for the purposes of being non-testimonial and thus not protected under the 5th amendment. If the exemplar is non-testimonial, and a jury is the proper venue for handwriting comparison, then it should properly be submitted to them for all reasonable inferences deducible therefrom. I'd also argue that it's just like the jury watching SFSTs- we allow them to watch the behavior of the defendant without expert medical testimony as to the effect of alcohol on coordination. Handwriting is simply one more non-testimonial piece of evidence of coordination.

I can only find two caselaw mentions of this kind of argument. One is Piatt v. State, Not Reported in S.W.3d, 2001 WL 361324, Tex.App.-Hous. (1 Dist.),2001. There, the State argued that the defendant refused to sign the DIC form specifically to deprive the state of the comparative handwriting sample. That argument was not before the appellate court.

The other is Barton v. State, Not Reported in S.W.3d, 2000 WL 1511744, (Tex.App.-Dallas,2000). That case deals only with the authentication of the handwriting exemplar used by the jury to compare the subjects intoxicated signature with. In that case the State tried to use a non-certified copy of the defendants DL. So be careful what you're using to compare with, and how you're authenticating it.

TRE 38.27: "It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath."


As noted above your court would need to reverse the Texas Rules of Evidence. Bold move.

As additional help, cite the cases on "one leg stand" and "9 step walk and turn" holding that these are physical obsevation not requiring expert testimony. Same logic applies. I know I used the word "logic" in a discussion about a judge's ruling.

Go to Richard's case law update on the DWI page. Chapter XV B and C for those cases.

Thanks. I had four different versions of her "sober" signature to use from various court documents, certified and ready to go. I cited both 38.27 and the SFST comparisons to the judge last week, who still requires either case law or scientific proof.

I think I am stuck with arguing weight versus admissibility, although I will check out those cases Brody. Thank you.

quite frankly, I see this as useful as determining intoxication based on "the odor of an alcoholic beverage".....

Here's an out-of-state case that pretty much says what you want

Observations of signs of intoxication are within the competence of the average adult. See, e.g., People v. Workman, 312 Ill.App.3d 305, 310, 244 Ill.Dec. 784, 726 N.E.2d 759, 763 (2000) (noting that "even a layperson is competent to testify regarding a person's intoxication from alcohol, because such observations are within the competence of all adults of normal experience"). While certainly not conclusive, the suggestion that an intoxicated person would not write neatly and within the lines is a reasonable one. See, e.g., People v. Jones, 65 Ill.App.3d 1033, 1036, 22 Ill.Dec. 763, 383 N.E.2d 239, 241 (1978) (noting that the "[d]efendant's handwriting appearing on the waiver suggests no appearance of intoxication"); State v. Sanders, 130 Ohio App.3d 789, 795, 721 N.E.2d 433, 437 (1998) (finding the trial court erred by excluding a copy of the defendant's signature shortly after her arrest to refute the trooper's testimony that the defendant's motor skills were impaired due to the influence of alcohol. "When a signature appears neat and legible, the inference that can be made is that the signer's motor skills were not impaired").


People v. Williams, 892 N.E.2d 620, 628 (Ill.App. 4 Dist. 2008)

I will see if she takes it!