Florida’s DUI laws changed significantly on October 1, 2025. For related information, see our Florida DUI defense resources. Under the law now in effect, a person who refuses a lawful breath or urine test after a DUI arrest can face a criminal charge for the refusal itself.
Previously, a first refusal generally resulted in an administrative driver’s-license suspension but was not, by itself, a separate criminal offense. Florida’s 2025 legislation changed that. A first qualifying refusal is now a second-degree misdemeanor, while a second or subsequent qualifying refusal is a first-degree misdemeanor.
Florida’s Implied Consent Law
Florida has what is commonly called an implied consent law. Under Florida Statute § 316.1932, a person who operates a motor vehicle in Florida is deemed to have consented to an approved chemical or physical breath test under specified circumstances. For a breath test, the statute requires a lawful arrest for an offense allegedly committed while the person was driving or in actual physical control of a motor vehicle while under the influence, together with the statutory requirements for the test.
The law also requires that the person be informed of the consequences of refusing the test, including the applicable driver’s-license suspension and criminal consequences.
When Did Refusing a Breath Test Become a Crime in Florida?
The change came from legislation enacted in 2025 and took effect October 1, 2025. Florida Statute § 316.1939 now establishes criminal penalties for qualifying refusals of breath or urine testing.
This means older websites and articles discussing Florida DUI refusals may no longer accurately describe the consequences of a first refusal.
What Is the Penalty for a First Breath Test Refusal?
Under § 316.1939, a person who meets the statutory requirements and refuses a qualifying breath or urine test commits a second-degree misdemeanor for a first refusal.
A second-degree misdemeanor is punishable by up to 60 days in jail and up to a $500 fine.
The refusal charge is separate from the underlying DUI charge. A person arrested for DUI may potentially be facing both a DUI prosecution and a separate prosecution based upon an alleged refusal.
What Happens With a Second or Subsequent Refusal?
A second or subsequent qualifying refusal is more serious. Under § 316.1939, it can constitute a first-degree misdemeanor when the statutory requirements are satisfied.
A first-degree misdemeanor is punishable by up to one year in jail and up to a $1,000 fine.
The driver’s-license consequences can also increase. Florida’s implied-consent law generally provides for an 18-month suspension for a second or subsequent qualifying refusal. You can also review our information about the Florida DUI formal review hearing and driver’s-license issues.
Is Refusing a Breathalyzer Automatically a Crime?
No. The wording of Florida’s statute is important. Section 316.1939 establishes several requirements that must be satisfied before a refusal constitutes the offense.
Among other things, the statute addresses whether the arresting officer had probable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence, whether the person was lawfully arrested for DUI, whether the required warnings were given, and whether the person refused the requested test after being informed of the consequences.
The Warning Given by the Officer Matters
Florida’s current law requires the person to be informed that refusing a lawful breath or urine test can result in criminal consequences. The exact warning and its timing can therefore become important evidence in a refusal prosecution.
A defense attorney may need to examine what the officer actually said, whether an approved warning was used, whether the warning accurately described the law, whether it was given before the alleged refusal, and whether body-camera or other recordings capture the exchange.
What If the Officer Did Not Properly Warn the Driver?
The warning requirement can be an important issue in a refusal case. If the State cannot establish that the statutory requirements were satisfied, the defense may have grounds to challenge the refusal charge.
The exact circumstances matter. The validity of a refusal charge should be evaluated using the arrest report, body-camera recordings, implied-consent documentation, and other evidence in the individual case.
Can the Refusal Be Used as Evidence in a DUI Case?
Yes. Florida’s implied-consent statute provides that a qualifying refusal to submit to a chemical or physical breath test is admissible into evidence in a criminal proceeding.
This means refusing the test does not necessarily prevent the State from using the alleged refusal during a DUI prosecution. A DUI case may also be prosecuted using other evidence, including an officer’s observations, driving behavior, field-sobriety evidence, statements, video recordings, and witness testimony.
Does Refusing the Test Mean the State Cannot Prove DUI?
No. A breath-test result is only one potential piece of evidence in a DUI case. Florida’s DUI statute permits prosecution based upon impairment of normal faculties or specified alcohol-concentration levels.
Consequently, the absence of a breath-test result does not necessarily end a DUI prosecution. The State still has to prove the elements of the DUI offense beyond a reasonable doubt.
Refusal and the Driver’s License Suspension Are Separate Issues
Florida treats the administrative license consequences and the criminal refusal prosecution as separate matters. Section 316.1939 provides that the outcome of an administrative proceeding concerning the driver’s license suspension does not determine the outcome of the criminal refusal case, and the criminal case does not determine the administrative proceeding.
A person may therefore need to address both the driver’s-license suspension and the criminal refusal charge. The administrative side may involve a DUI formal review hearing, while the criminal case is handled separately.
Potential Issues in a Florida Breath Test Refusal Case
Was the Arrest Lawful?
The refusal statute requires a lawful DUI arrest under the circumstances specified by the statute. The circumstances leading to the traffic stop, investigation, probable cause, and arrest can therefore become important. Our page on DUI defense provides additional information about defending a Florida DUI charge.
Was the Test Lawfully Requested?
Florida’s implied-consent statute establishes requirements concerning when a breath test may be requested and how it is administered. The defense should examine whether those requirements were satisfied.
- Review the DUI arrest and probable-cause evidence.
- Review the implied-consent warning and the timing of the alleged refusal.
- Review body-camera and other recordings.
- Address the administrative driver’s-license consequences separately.
Was the Required Warning Given?
The officer must inform the person about the statutory consequences of refusal. The exact language used and the timing of the warning may therefore be important evidence.
Did the Person Actually Refuse?
Sometimes there may be disagreement about what constitutes a refusal. The circumstances can include the person’s words, actions, physical condition, ability to understand the request, and the surrounding interaction recorded on body camera.
Was There a Medical or Physical Issue?
The circumstances surrounding a person’s ability to provide a breath sample can sometimes be relevant. The specific facts and medical evidence should be examined rather than assuming that an inability to provide a sample necessarily constitutes a refusal.
What Is the Difference Between Refusing a Breath Test and Refusing Field Sobriety Exercises?
These are different issues. Florida’s implied-consent statute concerns chemical or physical testing under the circumstances specified by § 316.1932. A roadside field-sobriety exercise is not simply the same thing as the post-arrest chemical breath test addressed by the implied-consent statute.
The legal consequences of declining a roadside exercise and refusing a post-arrest breath test should therefore not be treated as identical.
What If the DUI Arrest Happened Before October 1, 2025?
The date of the alleged refusal matters. The first-refusal criminal provision created by the 2025 legislation took effect October 1, 2025. Older cases may therefore be governed by the law that was in effect when the alleged refusal occurred.
Frequently Asked Questions
Is refusing a breathalyzer a crime in Florida?
For a qualifying refusal occurring under the current law, yes. A first refusal of a lawful breath or urine test following a qualifying DUI arrest can be a second-degree misdemeanor. A second or subsequent qualifying refusal can be a first-degree misdemeanor.
How much jail time can a first refusal carry?
A second-degree misdemeanor carries a maximum of 60 days in jail and a maximum fine of $500.
How long is the license suspension for refusing a breath test?
Florida’s implied-consent law generally provides for a one-year suspension for a first qualifying refusal and an 18-month suspension for a second or subsequent qualifying refusal.
Can I be charged with both DUI and refusal?
Yes. The refusal offense is a separate criminal offense under § 316.1939, and the underlying DUI charge may proceed separately.
Can a refusal be used against me in a DUI case?
Yes. Florida law specifically provides that a qualifying refusal to submit to a breath or urine test is admissible in a criminal proceeding.
Does everyone who refuses a breath test get charged with a crime?
No. The statutory requirements for the refusal offense must be satisfied. Issues such as whether the arrest was lawful, whether the test request was lawful, whether the required warning was given, and whether an actual refusal occurred can be important.
Sarasota DUI Refusal Defense
Florida’s new refusal law makes it more important than ever to understand exactly what happened during a DUI arrest.
A person accused of refusing a breath test may face both an administrative driver’s-license suspension and a separate criminal charge. The facts surrounding the arrest, the implied-consent warning, the test request, and the alleged refusal can all matter.
If you have been arrested for DUI or charged with refusing a breath or urine test in Sarasota County, a Sarasota DUI defense attorney can review the evidence and determine what legal issues may apply to your case.
Attorney Jeffrey A. Haynes represents clients facing DUI and other criminal charges in Sarasota and throughout Florida.
This article provides general information about Florida law and is not legal advice. Florida statutes and case law can change, and the law applicable to a particular case depends on the facts.
