What happens if I refused the breath test in Florida?

Until October 1, 2025, a first refusal in Florida cost a driver the license but was not a crime by itself. Chapter 2025-121, Laws of Florida (CS/HB 687, cited as "Trenton's Law"), changed that: its title says it is "creating a criminal penalty for a first refusal to submit to a breath or urine test subsequent to a DUI arrest." This page explains the refusal law as it reads in the 2026 Florida Statutes, the license side, and how a refusal fits into a DUI case. For Mr. Mead's overall approach, see the main DUI defense page.

What happens after a refusal, step by step?

1. The request and the warnings. After a lawful DUI arrest, the officer asks for a breath or urine test and gives the implied consent warnings: the license suspension, and that a refusal is a misdemeanor.
2. The refusal is recorded. The officer completes an affidavit that a test was requested and refused, which goes to FLHSMV within 5 days with the license and the notice (s. 322.2615(2)(a)).
3. The suspension starts. The notice of suspension takes effect on its date, with a 10-day temporary permit if the person is otherwise eligible to drive.
4. Two criminal charges may follow. The DUI charge and, if the elements are met, a separate refusal charge under section 316.1939. Both go to county court.
5. The 10-day decision. The driver requests a formal or informal review, or applies for the immediate restricted license if eligible.
6. The cases go forward separately. The license review and the criminal refusal charge do not control each other's outcome (s. 316.1939(2), (3)).

What is Florida's implied consent law?

Driving in Florida is treated as consent to testing. Under section 316.1932(1)(a), a person who drives in the state is deemed to have consented to an approved breath test, and to a urine test in drug cases, if lawfully arrested for an offense committed while driving under the influence. The test must be incidental to a lawful arrest and requested by an officer with reasonable cause. The driver must be told that refusing will suspend the driving privilege for 1 year, or 18 months after a prior refusal suspension, and that refusing is a misdemeanor. The same section says a refusal "is admissible into evidence in any criminal proceeding." The rules the breath test itself must follow are on our page about how a Florida breath test is done.

When is a refusal a crime in Florida?

Section 316.1939 makes a refusal a crime when all of these are true: the officer had probable cause to believe the person was driving or in actual physical control while under the influence; the person was lawfully arrested for DUI; the person was told about the license suspension and that refusing a breath or urine test is a misdemeanor; and the person then refused. The statute's wording covers tests of "breath or urine." Blood tests are handled under a separate part of the implied consent law.

The criminal refusal charge and the license suspension run separately. The statute says the outcome of the license proceeding "does not affect a criminal action under this section," and the outcome of the criminal case does not affect the license proceeding (s. 316.1939(2) and (3)). A refusal charge is also separate from the DUI charge itself, whose penalties are listed in our table of Florida DUI penalties.

How long is the license suspended after a refusal?

The officer suspends the license on the spot for 1 year for a first refusal, or 18 months if the license was previously suspended for a refusal (s. 322.2615(1)(b)1.a.). The suspension starts on the date of the notice. The driver gets the same 10 days as any DUI arrest to request a formal or informal review or to apply for a restricted license, as explained in how to keep your license within 10 days of a DUI arrest.

At a review of a refusal suspension, the hearing officer decides three things: whether the officer had probable cause, whether the person refused after being asked, and whether the person was told the suspension would follow (s. 322.2615(7)(b)). The hardship application, its waiting periods and its limits are explained on our page about a hardship license after a Florida DUI.

Can I be forced to give blood?

In some cases, yes. FLHSMV's summary of the implied consent law says blood "may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses." The same summary says a person who is unconscious or otherwise incapable of refusing is deemed not to have withdrawn consent. Those are crash cases, and a DUI that causes serious bodily injury or death is charged as a felony (s. 316.193(3)). When and how blood can be drawn after a crash is covered in can police take your blood after a DUI crash.

Does Palm Beach County's first-time DUI program accept refusals?

The State Attorney's program sheet lists a separate tier for refusals. Its eligibility list allows a second count only for "1) First Refusals (specified under Tier 3 Diversion conditions)" and certain citation-signing counts. Tier 3 includes a plea to reckless driving and a "Plea of Guilty to Refusal to Submit to DUI Testing" where "adjudication may be withheld or an adjudication (which will be decided on a case-by-case basis)", along with a $500 fine and court costs and a "MANDATORY 6 month alcohol monitoring device". The sheet also says a defendant's eligibility "is determined at the sole discretion of the D.U.I. filing unit". The program's tiers and timing rules are explained on our page about the Palm Beach County first-time DUI program. Where the plea is entered is described on our page about the South County Courthouse in Delray Beach. Whether a program is open to you, or a good choice for you, depends on the facts.

What changes the answer?

• Which test was refused. The crime in section 316.1939 covers a refused breath or urine test "as described in s. 316.1932." A blood test request follows different rules.
• The warnings given. The person must have been told about both the 1-year or 18-month suspension and that refusing is a misdemeanor (s. 316.1939(1)(c), (d)). What the video shows was said matters.
• A prior refusal. A prior refusal suspension, or a prior boating refusal fine under section 327.35215, makes a new refusal a first-degree misdemeanor; FLHSMV's records of a prior refusal suspension are admissible and create a rebuttable presumption (s. 316.1939(1)(d), (3)).
• The arrest. The person must have been placed under lawful arrest for DUI, and the officer must have had probable cause (s. 316.1939(1)(a), (b)).
• Age. A driver under 21 who refuses faces a 1-year suspension under the separate under-21 statute, explained in what happens when a driver under 21 is stopped after drinking.
• Where the case is filed. In Palm Beach County, a first refusal may fit the State Attorney's Tier 3 program terms quoted above; Broward has its own programs, listed on our page about pretrial diversion in Palm Beach and Broward.

A worked example

For example, suppose a hypothetical driver with no record is arrested for DUI in West Palm Beach and declines the breath test after hearing the warnings. The officer issues a notice of suspension for 1 year and a 10-day permit, and the driver is charged with DUI and with a first refusal, a second-degree misdemeanor. Within 10 days, the driver chooses between a formal review, where the hearing officer would decide probable cause, the refusal and whether the warning was given, and the immediate restricted license, which form 72034 says would last the full year for a refusal. If the driver requests a review and the suspension is upheld, a business-purposes license is not available until 90 days after the last temporary permit expired. Meanwhile the criminal case moves through county court, where the State must prove each element of both charges. This is a hypothetical walk-through, not a prediction.

Common mistakes people make

• Believing a first refusal is still only a license matter; since October 1, 2025 it can be charged as a crime.
• Assuming that winning the license review ends the refusal charge, or the reverse; each is decided separately.
• Missing the 10-day deadline, which matters even more with a 1-year suspension.
• Not checking whether the warnings in the video match what the statute requires.
• Driving after the permit expires; knowingly driving while suspended is its own offense under section 322.34(2).

What to do this week

1. Find the notice of suspension and count 10 days from its date.
2. Check the charging papers for a separate refusal count under section 316.1939.
3. Write down, while it is fresh, exactly what you were told before the test was requested.
4. Note any earlier refusal suspension, in Florida or on the water.
5. Decide with a lawyer between a formal review and the restricted license; the hearing itself is explained in what happens at a Florida DUI formal review hearing.
6. Keep the citation, notice and any jail or bond paperwork in one place.

Frequently asked questions

Is refusing a breath test a crime in Florida now?

Yes. Since October 1, 2025, a first refusal of a lawful breath or urine test, after the required warnings and a lawful DUI arrest, is a second-degree misdemeanor; a second or later refusal is a first-degree misdemeanor (s. 316.1939(1)).

Can the prosecutor tell the jury I refused?

Section 316.1932(1)(a) says a refusal "is admissible into evidence in any criminal proceeding." How it is used at a trial is a question for the judge in each case.

Can I get a hardship license after refusing?

After a first refusal, if the suspension is upheld, not until 90 days after the last temporary permit expired. FLHSMV's summary says there is no hardship reinstatement after two or more refusals.

Does a refusal mean I cannot be convicted of DUI?

No. The State can try to prove impairment with other evidence, such as driving, the stop and the officer's observations. The penalties for a DUI conviction are the same with or without a test result, apart from the higher brackets tied to a 0.15 reading.

I am from another state. Does my refusal count there?

The Florida suspension applies to the Florida driving privilege. How it reaches a home-state license is explained in what a Florida DUI means for an out-of-state driver.

What if I agreed to a test after first saying no?

That depends on the facts and what the officer did. The statute requires a refusal "after having been so informed" and "when requested to do so" (s. 316.1939(1)(e)), so the exact sequence on the video matters.

How does a refusal case get defended?

Each element of the refusal statute has to be proved. That puts the stop, the arrest and the exact words of the warning at the center of the case: whether there was probable cause, whether the arrest was lawful, whether the driver was told about both the suspension and the misdemeanor, and whether what happened was really a refusal. The video and the officer's report are the first places to look for those answers. Mr. Mead reviews that record from the start and gives an honest assessment of where the case stands. No outcome can be promised.

If you refused a test after a DUI stop in Palm Beach or Broward County, the license deadline is already running. A confidential phone call to (561) 362-6677 is a sound first step.

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