Defense lawyers should use the discovery process to learn as much as they can about the machine used in their client's case, lawyers say. Fiandach says he files Freedom of Information Act requests with state agencies to get information. That's how we win cases. The same expert could be used to testify during the hearing. Simply raising this issue may give a defense lawyer leverage in negotiating a better plea bargain.
Presentation can be key in convincing the prosecution to strike a deal.
However, experts note that DUI cases don't always rest solely on breath test evidence, so prosecutors may not be willing to bargain. Some experts say that if there is evidence of faulty thermometers in breath test machines in a given state, it might be possible to overturn old DUI convictions. Douglas Cowan, who practices in Bellevue, Wash., says that he thinks he may be able to reopen some cases as a result of the recent decisions. I think we do have a basis because the state patrol tried to cover up the problem. But Bowman cautions that some courts might not be willing to reopen a case if the defendant would likely have been convicted even without the breath test results based on other evidence.