David Katz is a founding partner of the Law Offices of Katz & Phillips, P.A. Mr. Katz limits his practice almost exclusively to the area of DUI defense. For More than 5 years, Mr. Katz has focused his practice on DUI defense. Prior to opening his own law firm, Mr. Katz was the lead DUI prosecutor in Seminole County, Florida.
Interviewer: Having done so many DUI cases, first of all, what number do you think you’ve now handled?
David Katz: We have certainly handled several thousand DUI cases.
Interviewer: Are you seeing any changes in what’s happening out on the street with people’s reactions and how these arrests are evolving during the past few years?
David Katz: The officers are receiving better training as we challenge them more and more in court. That’s something that has happened in other counties where the defense bar puts up strong defenses. The officers learn to do their jobs better and we have to be more and more creative in our defenses.
Interviewer: What kind of defenses now are no longer working, that maybe other attorneys would try to raise who are not as experienced as you?
David Katz: It’s not that the defense isn’t working. It’s that the officers aren’t making the easy mistakes. To give you an example, I had a client in Lake County, that was in an accident, and the officer told her because she was in an accident, she was required to take the breath test; it was mandatory.
That led to the suppression of the breath test results because that’s a misstatement of law and mistakes like that were common, and they are common in areas where the defense bar does not actively challenge the evidence in DUI cases. However, it only takes making this mistake once before the officer learns. So, we have to be more creative in the defenses.
Interviewer: Are there any other common mistakes made by police that are no longer happening?
David Katz: It’s not that they’re not happening. We still have officers stopping people illegally, but generally, once an officer learns that his arrest was no good, he doesn’t make that same mistake over and over.
Interviewer: Where is the defense of DUI now going? Is it going toward just attacking the science or is it still in traditional areas? What are you doing lately that’s working?
David Katz: We have a couple of new weapons actually. In Florida, the law has changed as of July 1, 2013, when it comes to the admissibility of scientific and opinion evidence. Florida changed from what was called the Frye Standard to what’s called the Daubert Standard.
Under the Daubert Standard, the State Must Meet Certain Criteria Regarding the Admissibility of Scientific Evidence
Under Daubert, the state, as the proponent of scientific evidence, must meet certain criteria in order to get that evidence in. Obviously, this would apply to a breath test, but we also believe that it applies to field sobriety exercises and, like I said, this started in July, so there hasn’t been much testing of these new laws, but we’re working on it. We’re writing the motions now and we’re going to get them filed and get them heard.
Interviewer: What was happening previously with the breath tests? What was the state able to do to get it into evidence and what does it have to now that’s different?
David Katz: Under the Frye Standard that focused on whether the underlying scientific principles were sufficiently established in the scientific community and they had gained general acceptance in their field. So basically, when it came to a breath test, was breath testing generally used in the field of forensic toxicology?
The only people who would use that kind of testing would be police departments. A breath test should never be an ultimate test. Maybe a screening device, but now, Florida has amended the law and it is Section 90.702 of the Florida statutes, abolishing the Frye Standard and providing that testimony must be patterned after the Daubert Standard, which is what the federal rules of evidence say.
Under the Daubert Standard, a Witness May Offer an Opinion or Testimony If Three Criteria Are Met
So what does that mean? It means that if scientific or technical or specialized knowledge will assist a trier effect, which is a jury, not a judge; a judge is a trier of law but if the specialized technical knowledge of a witness would help the trier effect and that person is properly qualified through knowledge, skill, experience, training, or education. Then, that person could offer an opinion or other testimony if the following three-prong criteria are met.
It has to be based on sufficient fact or data. It has to be the product of reliable methods and principles, and the person testifying has to have applied those reliable methods and principles to the facts in the case.
In this case, the state would have the burden of showing that the breath test is based on sufficient facts or data, it is the product of reliable methods and principles, and that it was appropriately given with those principles and methods in mind.
Interviewer: Then what does this mean? Does it mean that police now cannot testify about the breath test or they can?
David Katz: Our theory is that the breath test shouldn’t come in because we don’t believe that a breath test is a product of reliable methods and principles, and now the State has the burden, before they can introduce the evidence, of proving that it is.
Interviewer: So this all boils down to the fact that you may be able to get breath test results excluded more often than before.
David Katz: Or on other grounds or in areas where other methods haven’t worked. This is a trial strategy, and until we have a case set for trial where a breath test is coming in, because as I know you’re aware, we’re fairly successful in keeping them out, but we’re going to try and use this to keep out field sobriety exercises also. This is because there are cases that followed the Daubert case.
That’s actually Daubert vs. Merrell Dow Pharmaceuticals, is the full name of the case, but there have been a couple of cases, called Joiner or Kumho Tires, that have translated or interpreted the Daubert case to extend it past just scientific evidence and extend it to other evidence.
Interviewer: What other areas are new that you’re attacking and that is working for you?
Questioning the Validity of the Police Stop or the Officer’s Reasonable Suspicion
David Katz: We always attack the stops, specifically, the officer’s reasonable suspicion to conduct a DUI investigation, and also whether or not the field sobriety exercises have been properly administered. If they haven’t, then their evidentiary value is limited, as well as the breath test, which is your basic evidence in every DUI case. Of course, the facts of each case are different, so each one has to be analyzed on its own facts.
Interviewer: Are you seeing anything else change when the drivers are being pulled over, or is it just now the area of DUI defense, your defenses are just evolving and changing?
David Katz: I don’t think that much has changed. Officers are still making stops. If they smell alcohol, they’re still making arrests. There was an officer, I believe in the Hillsboro area that was fired for making many bad arrests. The cases involved drivers taking breath tests that didn’t have any alcohol in their system at all, alcohol or drugs apparently, and he was just terminated for that.
Interviewer: You’re also practicing in more areas in Florida, is that right?
David Katz: Yes, sir. Currently we have offices in Alachua County, in Gainesville; in Hillsboro County in Tampa; Orange County in downtown Orlando; Seminole County in Longwood; and in Lake County in Tavares, and we have plans to open an office in the Ft. Lauderdale-Broward area, Broward County, in the Ft. Lauderdale area.
Interviewer: What are you noticing now that you’ve expanded your reach? How are cases different in all these counties?
David Katz: It really depends on what the attorneys that are currently there have been doing. Quite often, when we expand to a new county, people haven’t seen the kinds of aggressive defenses that we put on. Our methods are new to them and many times the prosecutors give us what we want instead of having to deal with the defenses we put on.
They’ll offer to amend the cases, or they tend to be overwhelmed in court because we really do look for every single issue we can find in the DUI case and file motions to suppress all the evidence based on any issue we can find.
Continuing Education So Clients benefit from the Most Current Defenses:
Continuing Education for All Attorneys in Katz & Phillips, PA
We spend a lot of money making sure that the education of all our attorneys within the firm is complete and up to date. We all attend continuing legal education seminars way more than we have to. We don’t do just the bare minimums. We keep our affiliations up to date and current.
We are members of the national college for DUI defense and lean on their educational programs to continue to advance our knowledge. It’s just a matter of wanting to be the best and striving to be the best, and making sure that you put yourself in a position where you can defend your clients because you know the issues.
Interviewer: Can you provide any examples of recent cases where you found issues, but it was only after digging deep and really taking a long time to research a case?
Being Unable to Provide a Breath Sample Is Not the Same as a Refusal to Provide
David Katz: We have had some cases where unfortunately videos are not always forthcoming initially at the beginning of the case and they take time to obtain. Recently I handled a case where I watched my client attempt to provide a sample of breath into the breath test machine 16 times, until she was just physically too exhausted to continue.
The breath test operator never told her you’re doing it wrong, you’re not following instructions; in fact, the breath test operator was very sympathetic, telling her, “I can see that you’re trying, but unfortunately if you don’t provide two sufficient samples, they’re going to call this a refusal.”
How the State Uses a Breath Test for the Advantage of the Prosecution
Well, they did call it a refusal and unfortunately she didn’t hire me before her time period ran out to protect her driving privilege, so her license was suspended. I think at an administrative hearing, if we’d been hired in time, we probably would have won that hearing, but the state wants to use her alleged refusal to take the breath test as evidence of what they call “consciousness of guilt.”
In other words, she didn’t take it, she didn’t provide the samples because she knew she was guilty and she didn’t want to provide the evidence and therefore a jury to know, what the results were.
We filed some motions after watching this video to suppress that as evidence because I don’t feel that has any real probative value. If a person attempts and gives it their all, for example, with this client that 16 times tried to prove her innocence and 16 times the machine wouldn’t accept the sample she was providing as a scientifically reliable sample.
Using State’s Evidence to Prove A Client’s Innocence
It wasn’t for lack of effort on her part. You could see, at the end of this she was physically exhausted, and yet the state called it a refusal and she’s suffering the administrative consequences of the refusal and the state attorney’s office is trying to use it as evidence of guilt. I think it is clear evidence of non-guilt, because a guilty person doesn’t try 16 times to prove their innocence.
Interviewer: Are there any other unusual cases you’ve come across recently?
David Katz: I have another case where a client has COPD and we have obtained his medical records showing he has the lung capacity of a 90-year old. The state is trying to call it a refusal even though, on video, you can see him attempting to provide a sample probably six, seven times before the officer decides it’s a refusal and takes the breath tube away from him.
Testing a Breathalyzer Machine’s Ability to Accurately Measure Sample Volume
One of the problems with the breath testing program in Florida, and as far as I’m aware, elsewhere also, is they never check the machine’s ability to accurately measure volume. The volume, according to the Florida Department of Law Enforcement, is a key component in a scientifically reliable breath test.
When a person takes a breath test, they’re blowing through a breath hose. Every month when they do the monthly maintenance or every year when they do the yearly inspections, they’re using simulators that go through a different port. They do not go through the breath hose, and therefore the machine’s ability to accurately measure volume is never measured.
An Individual’s Inability to Provide the Volume of Breath Needed by the Machine to Record a Sample Leads to False Classifications of Refusals
The problem is that if the machine says that a volume sample is too low, it rejects it, and based on those rejections, people all over the State of Florida and throughout the country where the Intoxilyzer 8000 is used are being said to have refused to take the breath test.
Now, is it possible that some of them really aren’t blowing? Sure it is, but without knowing that the machine is working properly and able to read the volume properly, nobody should be able to be classified as a refusal when they attempt to take the breath test and the machine says it’s not a sufficient sample, unless they can prove that the machine was working accurately.
Interviewer: There could also be holes in the tube or it could be disconnected?
David Katz: Sometimes the mouthpieces aren’t drilled out correctly because the mouthpieces are disposable. With every person, there’s a new mouthpiece and so if the hole isn’t big enough, you can have problems blowing into the machine.
An Improperly Set R-Value Will Lead to a False Refusal from a Breathalyzer Machine
There’s also something in these machines called the R value, and if it isn’t set properly it can cause the machine to reject samples. They never check the R values anymore. They used to do it as part of the yearly inspection.
They stopped after one department inspector wrote a memo to an agency inspector to take a machine offline because the R value was too low, and if defense attorneys found out about it that is enough to cause hundreds of breath tests to be invalid. That’s what was written on the memo.
Does Condensation Form on the Inside of the Breathalyzer Tubes?
Interviewer: Does any matter accumulate in the tubes? Does humidity in their breath condense on the walls of the tube?
David Katz: That’s another reason why it’s very important to watch the breath test videos. The tube itself is supposed to be kept coiled in the top of the machine in a heated chamber when it’s not being blown into.
Many times though, you see the breath test operator sit down at the instrument when they’re about to give a breath test and the first thing they do is pull the tube out and hold it in their hand while the machine warms up, which is letting the tube cool down, which can cause an accumulation of saliva and spit in the tube.
I don’t know if you’ve ever played an instrument. I used to play the trombone. I had children that have played the saxophone and the tuba, and there’s always a little valve to release spit from inside the instrument, because when you blow into it, it accumulates in the instrument you play. The same thing’s going to happen inside the Intoxilyzer, especially if the breath test tubes are not properly heated.
Interviewer: Are there any other new issues that are coming out in DUI defense lately that people need to be aware of?
In the Future, the Legal Blood Alcohol Limit May Be Lowered to .05
David Katz: They’re always talking about making the laws stricter. There’s been recent talk about lowering the legal limit to .05 and that is being considered on a national level. That’s new and something that people should be aware of.
Voluntary and Involuntary Blood Draws
There’s also a new case that came out of the US Supreme Court called Missouri vs. McNeely. That case had to do with blood draws and involuntary blood draws. In Florida, the law is that if there’s an accident with death or serious bodily injury, that the police can take blood without consent, and so we recently represented a gentleman who is alleged to have hit a taxi with 12 passengers in it, seriously injuring some of them.
The officer said to him, “Since you were in an accident with serious injury, I am taking your blood. I do not need your consent and will use all force necessary, if necessary, to get a sample of your blood.” Our client then sat there and allowed his blood to be taken by one of the paramedics.
Did the Police Misinterpret the Law? Prevailing in a Case Involving an Involuntary Blood Draw (Case Study)
The state resolved that case with us because truly, the only evidence they had of impairment was the blood test result. We wrote a motion to suppress that result based on McNeely, where the US Supreme Court said that officers need to get warrants to take blood.
Do Florida police Perform Unconstitutional Blood Draws on Drivers Involved in Accidents and Suspected of Being Intoxicated?
There would be some exigent circumstances where they wouldn’t need a warrant, but the law had never meant that taking blood does not need a warrant unless there is some reason and what the state says is the alcohol will dissipate while we’re getting the warrant, so we need to be able to just get the blood.
The Supreme Court said no, these days you can get a warrant relatively quickly with the way technology is, and that that’s not enough to just take blood. So hundreds or thousands of cases of blood samples, if the attorneys raise the issue, probably will resolve fairly favorably to the defendant because of illegal, unconstitutional seizures of the person’s blood.
Warrants Compelling Individuals to Provide a Blood Sample Are Relatively Easy and Fast for the Police to Obtain
Interviewer: I’ve heard in many locales they can get a telephonic warrant in a very short time period, so why have to force people?
David Katz: That’s the point. If warrants are now that easy and that quick to get, requiring the officers to get a warrant based on probable cause shouldn’t be much of a hindrance to their enforcement of DUI laws.
The problem is that the officers weren’t doing that because the law didn’t require it, except that the Supreme Court says yes, it did all along, the Constitution requires it, and that any takings under the old law are unconstitutional.
Are the Police More Likely to Request a Blood Sample or a Breath Sample?
Interviewer: On DUI stops, are police asking more for blood tests in Florida or are they still mostly requesting breath samples?
David Katz: No, it’s still mostly breath. Blood tests are far more expensive and take a lot longer to come back from the crime lab than an instant breath test.
Interviewer: How about non-alcohol cases or cases that involve prescription drugs or illegal drugs? Are they on the rise?
David Katz: Yes, drug-related DUIs are definitely on the rise. What seems to be most common are cases attributed to prescription drugs mixed with alcohol consumption. I have had clients who have a very low breath test, maybe .03 or .04, which is half the legal limit, and if you watch the video of them at the roadside, it seems fairly obviously that there’s something going on other than being at half the legal limit.
Most of the time, they’ve taken their prescription, maybe Xanax and they drank with it and the drugs are interacting with the alcohol, multiplying the effect.
Interviewer: On those kind of cases, is it difficult to defend them or has it changed the situation the way you do?
The Defense Can Rely on the Video Recording of the Police Stop and if a Breath Test or a Blood Test was Administered
David Katz: It really depends on how bad they look on the video. Some people who look okay, those cases may be easier to resolve with the prosecutor because it is possible that law enforcement doesn’t have a drug test. Maybe all they have is a breath test. If all they have is a breath test below .08, a lot of times we can make those cases go away.
You asked something new. Lately, we’ve had three clients in the last three months that blew 0.0o. So they were way below the legal limit, but we’ve had three clients recently arrested; two of them blew .000 and one of them blew .02, which is one-quarter the legal limit. They all gave urine samples for drug testing and all of the drug tests came back completely clean.
I don’t remember before in my career encountering this. It is possible that in the last seven years, I’ve had one other case like that, so it seems like the arrest trigger is being pulled a lot more quickly these days. I’ve always told people, if you have alcohol on your breath, you’re likely to get arrested, even if you’ve had just one drink.
Interviewer: If someone blows below .08, what’s the police’s reaction?
David Katz: In Florida, first, if you blow under a .08, they don’t suspend your driving privilege on the spot. They’re not supposed to, anyway. You’re supposed to get your license back.
Many times, the police will then say, “Well, I need urine or blood from you.” There’s case law out there that say if the police suspect somebody’s impaired by alcohol, just because they were wrong does not give them probable cause to request urine for a drug test.
Police Need Probable Cause to Request a Urine Test for the Presence of Drugs
Interviewer: Otherwise, why wouldn’t they have done that test in the first place?
David Katz: Sometimes there are times when the officers smell the odor of alcohol and they find drugs in the car, or they also smell the odor of burnt marijuana or something. In a case like that, then the police might have probable cause to ask for a drug test too.
The other thing is that the courts have held, if the person’s behavior is so different than the breath test result, for instance, somebody looks like they’re falling down drunk, they can barely stand, they were all over the road, etc., and they blow a very low number, that that might in and of itself give the officer probable cause to request a drug test.
But a number that’s close, if somebody blows a .04 and the officer thought they might be above the legal limit, but they looked good on video, they may still not have a reason to ask for a drug test.
Drug-Related DUIs are Commonly Attributed to Prescription Drugs
Interviewer: Of the drug cases you see, are they more illegal drugs or more prescription drugs?
David Katz: They may be prescription. They may be somebody else’s prescription, but driving under the influence of prescription drugs has become a bigger and bigger problem.
Interviewer: How do police know? Is it because it actually is causing people to be more impaired or is it because they’re just admitting use when the police ask, “Have you taken any prescription drugs?”
David Katz: Most of the time, first they’ll search a person incident to arrest and find prescription drugs on them. Also, there’s a saying in the criminal defense community, you have a right to remain silent. The question is, do you have the ability, and unfortunately many, many people, one of the things alcohol does is it lowers your inhibitions, and lots of people, when they drink, talk, and officers, of course, take advantage of that.
Even somebody who normally wouldn’t say anything under the influence of alcohol is going to talk. I had a case the other day where the client is a former corrections officer who, when the officer asked if he’d do field sobriety exercises, he said, “Absolutely not.”
When he asked if he would take a breath test, he said, “Absolutely not,” but in the meantime, at the side of the road, the officer had called paramedics out to check his blood sugar because the client said that he was diabetic.
So the officer was trying to rule out the fact that he was having a diabetic emergency, low blood sugar, and waiting for the ambulance to arrive, on video of course, the officer and the client are talking.
The officer says to him, “Well, the reason we’re here is because I believe that you’re drunk,” and the client allegedly answers back, “Well, of course I’m drunk.” The officer says to him, “Well, if you’re drunk, why are you driving?” and the answer is, “Well, I wouldn’t say I’m drunk, but I’m definitely impaired.”
So that’s an example of how the effects of alcohol can lead to self-incrimination. This is a person who’s a former corrections officer who knows not to do field sobriety exercises. In his mind, he says, “I don’t trust these. I don’t trust these because an officer’s interpreting them. I’m not going to do them.” In his mind, he says, “I’m not going to take the breath test,” but standing there on the side of the road and tells an officer that he’s drunk.
There Are Many Avenues to DUI Defense, with the Exception of a Defendant’s Own Admissions
Amazingly, we were able to negotiate a reckless driving on that case with the prosecutor because one of the things that I always tell people when I talk to them, that a lot of times, I can defend them from just about anything except their own mouth.
Interviewer: Right, that’s true.
David Katz: In that case, if we had gone to a jury trial, what was my argument to the jury? Don’t believe what you hear on the video? Believe us now?
We were very fortunate we were able to find some legal ground to argue that those statements might be inadmissible. The prosecutor agreed that we had some good arguments and was willing to work with us.
Interviewer: Are you hearing anything different from potential clients that are calling that’s making you aware of things changing out there for people’s mindsets and their education and pseudo-education about DUI?
David Katz: No, unfortunately we spend all this money on these campaigns to end DUI. I don’t know if it would be worse if we weren’t doing that, but the problem, people drinking and driving doesn’t seem to be changing.
The people who we represent come from all walks of life, all economic areas and people who are advantaged, people who are disadvantaged economically, well educated, poorly educated. It doesn’t seem to change.
Interviewer: Have you discovered from having done so many cases now, what do you think truly holds people back from hiring you?
David Katz: Ultimately, there are people who can’t afford us. In criminal law, you often get what you pay for. There are attorneys out there who advertise that they’ll do a first DUI offense for $900. I know in other markets, there are attorneys who advertise for less than that. You get what you pay for. I don’t disparage other lawyers, but when we quote a fee, it’s a fair fee based on the amount of work we know we’re going to do.
Fees Based on the Amount of Work That Is Needed for the Defense
I have a client who hired me on an alleged third offense. He has one prior conviction. I quoted him the highest fee in the market, higher than other fees he had been quoted. He didn’t call every lawyer in the market, but he ended up hiring me.
I sent him, the other day 150 pages worth of suppression motions that I had written in his case. He called me back and said, “I’ve had lawyers on two other cases and none of them ever sent me anything.” So I don’t know if they ever did anything or not. Maybe they did and just didn’t communicate it with him, but we get results because of the effort we put in.
What to Do before You Retain an Attorney to Defend a DUI Charge
Interviewer: Before prospective clients call you, they can look at your website but what do you suggest people do so they have a better sense of who to hire? It sounds like a decision that they obviously haven’t been faced with for the most part.
David Katz: Yes, most of our clients are first offenders that have never had any negative experience with law enforcement before. There are a couple of things out there that I like. I know some other lawyers don’t like them, but Google lets people leave reviews of their attorneys. They can read the reviews of the law firms. There’s a website called AVVO.com where people can leave reviews and ratings of attorneys, and people can to ask questions. They can’t be afraid. This is their freedom. This is the rest of their life. They need to ask questions about attorneys.
Investigating Credentials: Attorney Katz and James Phillips Named to the National Trial Lawyers List of Top 100 Trial Lawyers; David Katz, esq. now listed as One of Three Board Certified Defense Experts Practicing in Florida
The attorneys in our offices are all highly credentialed attorneys. Both James Phillips and I were just recently named to the National Trial Lawyers Top 100 Trial Lawyers. That’s my partner and I. I’m one of only three board certified DUI defense experts practicing in the State of Florida. I’m board certified by the National College for DUI Defense which is accredited by the American Bar Association.
Florida does not recognize does not recognize DUI as a specialized area of law, so the Florida Bar doesn’t recognize DUI defense as a specialized area, so I’m not certified by the Florida Bar, but I am certified by the only organization nationally accredited to give out board certification for DUI defense. You have to earn that. My partner is actually sitting for the board certification exam in January.
Extensive Trial Experience
There are lots of lawyers out there who say they handle DUIs. You ask them when was the last time you went to trial or how many trials have you had in the last five years or even the last three years. You might be able to count that number on one hand. We’ve had four trials this month.
Being Willing to go to Trial for Clients When the Prosecution Is Not Amenable to a Favorable Plea Bargain
There are times when it’s in our client’s best interest to plead to a DUI. I can’t tell you that no one has ever pled to a DUI, but the vast majority of our clients do not enter pleas of guilt to DUI. The prosecutors know that that’s not going to happen, which tends to get us better offers anyway, and the cases that we can’t get those better offers on, we go to trial and we fight like hell for our clients.
Many times, the prosecutors will back down at the last minute because they don’t want to get into that fight. Sometimes we end up going to trial and going to jury verdict. We’ve also had prosecutors amend charges and make new offers after trials have started, because the trials aren’t going well for them, but you’re not going to get those results if you’re not willing to go to trial.
Interviewer: What phrase do you find that your office tells a person that seems to turn a light on, such as, “Oh, this is what’s truly important about finding an attorney,”?
David Katz: We can discuss our qualifications. I’m fortunate with the board certification that I’ve earned that, so that distinguishes me. Like I said, there’s only two other attorneys in the State of Florida who have that. We have all our peer reviews, our former client reviews.
Free Initial Consultation, Including In-Depth Discussion about the Merits of Your Case
The truth is, if you come in and talk to us about a DUI case, we’ll sit down with you for an hour, hour and a half, going over your case, telling you what to expect and what we see and what we think defenses are. Now, things change as we learn more about the case, but we really spend time with people. Many attorneys will spend five or ten minutes with somebody before they rush them out of their office if they haven’t been paid.
Even in our first initial meeting before we even have a commitment from anybody that they’re going to hire us, we spend at least an hour with the person who’s come to see us, because we know that most people who come to see us have never been through this process before and they’re scared to death.
Interviewer: What about people that are on the phone? Can you still consult with them or do you tell them to come in first?
Because Florida Is a Popular Vacation Destination, Katz and Phillips Handles Handled Many Cases for Out-of-State Clients
David Katz: Being that our main office is in Orlando, Florida, we have a lot of people who come here on vacation. They get a DUI and they go home to whatever part of the world they came from, whether it’s somewhere in the United States, another state, or another country. We’ve represented people from England, Africa, Spain, who does not reside here, but who are calling looking for an attorney after they’ve gone home.
So we’ve become very proficient at doing potential client interviews and meetings really over the phone and using a fax machine and computer to complete the process. Email is fantastic. Although my preference is to meet with somebody face to face, that’s not always possible, especially in a big tourist market like I’m in.
If I was hiring an attorney, I’d want to meet them face to face. I’d want to get to know the person who was going to represent me, but a lot of people are not able to do that. They don’t want to take the time off from work or they can’t do it.
The DUI arrest has already made them miss work. They’ve got to pay a lawyer. They’re worried about having to pay fines and costs at the end of the day. Maybe they were in an accident and their car was wrecked and they just can’t afford to miss more work.
Interviewer: Since you have multiple offices and staffs, if someone hires you literally, will they have you handling the case the whole time or will someone else in your firm go to court for them?
Who You Hire is Who Goes To Court With You
David Katz: I had somebody call in Tampa from our Hillsboro County office and, like I explained to them, it doesn’t matter what office that they hire. If they want just me, if that’s their request, they can have just me. They may have to pay a higher fee, but it’s always possible to do that.
Even out of our Orlando office, if someone hires me on their case, we do work the cases as a team. If they meet with me and they hire me, I’m going to be the lead attorney on their case, but I can tell you, there are days where during pre-trial conferences or status dates, where every attorney in the firm has to be in three different courtrooms or three different counties in three different courtrooms, because we all have cases in front of the same judge.
Using a Team Approach to DUI / Criminal Defense
On those days, one attorney goes to each place and covers all of the cases for the firm. The other benefit of hiring our firm though is, let’s say you do hire one of our associates. James and I are involved in every case. We review the discovery. We plan the strategy with the associate who’s the lead on the case and we all work together to get the best possible outcome. We believe that a team approach achieves better outcome.
I’ve definitely had clients who have seen that I was the board certified DUI defense attorney and they have said, “I don’t want anyone else touching the file.” I’ll tell them my opinion about that, but if that’s what they want, they can certainly have that. I think it’s an advantage to have multiple eyes look at it.
Interviewer: That’s true.
David Katz: But if they hire a particular attorney in the firm, that attorney will be the one who takes the lead on their case unless there’s a reason not to, and I’ll give you a reason. There is an attorney in my firm who has a great relationship with a couple of prosecutors on a particular docket, and it’s a better relationship than I have with them, and he has, in the past, gotten some results that have been pretty unbelievable.
So there are times when I’ve had people come in who wanted me to handle the case and I say to them, “Look, I believe it’s in your best interest, at the very least, to have him be the courtroom face.” Sometimes they let me convince them of that and we get the results because of it, and other times, they don’t. They want just me to do it and that’s what they get.
We always try and put the right person in the right situation.
Interviewer: In a DUI case, how many times will someone have to go to court and how many of those times can you go for them where they don’t have to go? How much of the burden can you take off of them?
Limiting the Court Appearances for Clients
David Katz: In most counties, in front of most judges, our clients may not even have to show up in court, maybe one time. There are, however, some judges that require the clients to be there and don’t care that the law says they don’t have to be. There is a judge that I’m in front of often who actually got overturned three times by the appellate court for issuing warrants for people who didn’t come to dates that the law says they don’t have to be at.
She doesn’t issue warrants for them anymore, but like I tell my clients, this is the woman who one day may have the power to sentence you. If we go to trial and lose, and you’ve done what she considers being disrespectful by not coming to these dates that she says you need be at, and maybe she puts you in jail for a month whereas she wouldn’t have put you in jail at all if you’d come to court dressed respectfully like she wanted you to.
By law, she can’t require them to be there, but certainly at the end of the day, the judge can punish them for showing the court disrespect. Most of the judges don’t care if they’re there, but in front of the ones that do, we always make sure our clients know about when they need to be there and that they are there.
Is It Important for your Defense Attorney to Have a Good Relationship with the Court?
Interviewer: I’m not saying you receive preferential treatment, but knowing the prosecutors and the judges and the court staff, how does that help you in defending people? Does it really help you get better results and why?
Experience to Know Which Issues are Important to the Judges
David Katz: The same judge that we were just talking about, when I first appeared in front of her, she said something to me that I’ve never forgotten. She said, “You know, Mr. Katz, sometimes it’s more important to know your judge than to know the law.”
When I was a prosecutor, I had a big home field advantage. I knew how my judge was going to rule on defense attorney’s motions before they even started arguing, because I knew what was important to him and what his rulings were on issues, and that judge’s advice is really very true.
There are times where I go in with issues where I truly believe in them, and I strongly believe in front of that judge, I’m going to lose. There are times where I know that there are issues that are important to her where I disagree with her interpretation of the law, but I know I’m going to win, so knowing your judge matters and knowing how they rule matters.
Earning Respect from the Court – Deep Knowledge of the Law
I would not say that there is a judge out there that rules in our favor because he or she likes us. On the other hand, we do get rulings other attorneys may not because we present more case law, we present it maybe in a different manner, or we dig deeper and find the obscure case that supports our position. And we’re willing to fight for our position instead of just saying, “Well, I think it should be this way.” We actually find the authority and present it.
Also, the other thing is that if you don’t lie to your judges and prosecutors, they learn to trust you. As a prosecutor, you knew who you could believe and who you couldn’t, and there are times when I can go to the prosecutors now and tell them why their case will fail, and they will amend the charge just because I said so. This is because they know I’m not lying to them and I’m not going to. If I do it once, there goes my reputation.
Interviewer: That makes sense. I didn’t realize that. Are there any other factors involved with the prosecutors that help you get better results?
Treating the Court with the Respect – the Golden Rule
David Katz: I’ll tell you one other thing. It’s not a matter of friendship. I have a lot of friends who are prosecutors, but it’s a matter of respect. We treat the prosecutors with respect even when we’re bitterly arguing with them in court. We don’t take it personally. We never hope they do, and we don’t make it personal.
I can tell you, when I used to be a prosecutor, there are just too many defense attorneys who become nasty, take potshots, and think that that’s going to help their clients. Whether you agree with their position on a legal issue or not, prosecutors are doing their job.
Mutual Respect Fosters Good Working Relationships between Prosecutors and Defense Attorneys
Even if there was somebody who I truly didn’t like, they would never know it and I always treat them with respect. I always provide them with the legal basis for my arguments and generally, there are times where we do get better treatment than some other attorneys because we give better treatment first.
Nothing improper is transpiring, nobody’s dropping cases just because we have a working relationship. BUT, it’s always easier to work with somebody who you don’t mind talking to rather than it is someone you’re at odds with.
David Katz: So when I call a prosecutor, my call gets answered, or if they’re not available, they call me back, whereas some defense attorneys may never get that call back.
Interviewer: When another attorney says ‘I’m aggressive, I’ll fight for you’, does that mean something different to you versus the lay person, or if they say other things, do they translate into warning signs or is that a good thing to hear from an attorney?
David Katz: If you’re talking to an attorney, interviewing somebody about taking your case, there isn’t an attorney out there who’s going to say, “Well, I’m not going to do much of anything for you. I’m not aggressive. I’m just going to sit back and watch you plea.” They’re just not. You’re going to hear from everybody, ‘aggressive attorney’, ‘focus on this’.
What Percentage of the Attorney’s Practice Is Focused on DUI Defense?
There are many attorneys out there who claim to be DUI defense attorneys. Talk to them about that. What percentage of their practice is DUI defense? Lots of times you can go on the clerk’s website. In Orange County, Florida, you can actually do a search of the attorney and see all the cases they’ve represented, and you can click on the cases and see if there’s been any motions filed, or any hearings held. You can see the results too.
Ensure the Attorney You Hire Is the Attorney That Is Representing You throughout the Case
The potential client has to be willing to spend the time doing the research and they have to be willing to ask questions, like the one that you asked me. If I hire you, who do I get? There’s a great local law firm that does great work with DUI, and you’ll meet the partner whose name is on the door when you hire the firm, and you will almost never see that person in court, because if he’s in court, he can’t be signing new clients.
Now, fortunately for that firm’s clients, the attorneys he has working for him are some fantastic DUI lawyers, so hiring that firm isn’t necessarily a bad thing, but I’ve been in court when some of their clients have gotten upset because they didn’t expect somebody else there holding the file.
Or they’ve never seen the name that they paid big bucks for. So you ask me the question about if they hire me, do they get me? If that’s what they want, that’s what they get. I have people tell me they don’t want anyone else touching the file. That’s what they get.
On the other hand, like I said, I’m a big believer in the team approach. Even when we use the team approach, the attorney you hire is the one who’s going to do your hearings and trial, but other attorneys will have input on planning and strategy.
A trained monkey can go to a pre-trial conference and say to a judge, “Judge, we haven’t received any evidence from the state yet. We need to reset this case next month.” Those are the kind of things we’ll do for each other on each other’s cases, but when the client’s legal rights are being litigated, generally it’s the person you hire who’s going to be there arguing for you.