Yes, you can. The refusal charge only holds if it is proven at the DMV hearing and if the DUI prosecutor successfully proves the charge beyond a reasonable doubt in court, so your DUI defense lawyer can fight the charge for you in both situations. Possible grounds for defense include:
*Your DUI arrest was unlawful. The DUI and the refusal enhancement may be dismissed if there was not sufficient basis for the DUI officer to pull you over or arrest you.
*You were not under the influence. In the event that a jury acquits you of the underlying DUI charge, the refusal enhancement no longer exists in the eyes of the court. Please note, this may not prevent the DMV from pursuing suspension of your drivers license.
*You were not properly advised of the consequences of refusing. The DUI officer is required to advise you of the consequences of refusing the chemical test through a very specific set of warnings. (See Jury Instruction on Refusal) Neither the court nor the DMV can hold the refusal against you if the DUI officer failed to give you the warnings properly.
*The DUI officer was unclear about the BAC test requirement. All warnings must be given in such a way that they’re comprehensible to the DUI suspect. As such, the refusal penalty may be negated in the event that the officer’s explanation caused confusion regarding the requirement to take the BAC test.
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