Absolutely. For the refusal charge to stick, it must be proven at the DMV hearing and the DUI prosecutor must prove it beyond a reasonable doubt in court. A DUI defense lawyer can fight the refusal charge at both of these places.
Some of the defenses that may be asserted include:
* The driver was not lawfully arrested for DUI: If the DUI officer lacked a sufficient basis to pull you over, or later to arrest you, then the DUI and the refusal enhancement will be dismissed.
* The driver was not under the influence: If a court or jury acquits you of the underlying DUI charge, then the refusal enhancement ceases to exist as far as the court is concerned. The DMV, however, may still seek to suspend your drivers license.
* The DUI officer failed to advise the driver properly of the consequences of refusing:The DUI police officer must give you a very specific set of warnings as to what will happen if you refuse to take the chemical test. (See Jury Instruction on Refusal) If he fails to give you this warning properly, the refusal cannot be held against you by the court or the DMV.
* The DUI officer himself caused confusion about the BAC test requirement: The DUI officer must give the warning in a manner comprehensible to the driver. If the officer’s conduct or explanation of the law cause the DUI suspect to be confused as to the requirement to take the BAC test, this may negate the refusal penalty.