In Brief
Refusing a lawful breath or urine test after a Florida DUI arrest now carries two separate consequences: a driver license suspension of one year for a first refusal or 18 months for a second, and, since October 1, 2025, a criminal charge. A first refusal is a second degree misdemeanor and a second refusal is a first degree misdemeanor. The refusal crime has elements the State must prove, including that the officer warned you of both the suspension and the criminal charge before you refused.
For decades the barroom advice in Florida was that a first refusal only cost you a license suspension. Whatever that advice was worth before, it is dead now, and I still meet people every month who are carrying a criminal charge they did not know existed when they made the decision.
On This Page
What Changed in October 2025
Effective October 1, 2025, the legislature rewrote section 316.1939. A first refusal to submit to a lawful breath or urine test after a DUI arrest is now a second degree misdemeanor, punishable by up to 60 days in jail. A second or subsequent refusal is a first degree misdemeanor, punishable by up to a year. Before the change, only a repeat refusal was a crime.
The license consequence did not go anywhere. A first refusal still triggers a one year suspension and a second refusal an 18 month suspension under section 322.2615. What the new law did was stack a criminal case on top of the administrative one, which means a refusal now produces two proceedings in two different buildings with two different sets of rules.
Two Tracks That Never Touch
The statute is explicit that the two tracks are independent. Winning the license hearing does not dismiss the criminal charge, and an outcome in the criminal case does not restore the license. I have watched people skip the license fight because they assumed the criminal case would resolve everything, and the statute is written specifically to prevent that from working.
The administrative side runs on a brutal clock: you have ten days from the arrest to request a formal review hearing, and that same request is the tool that gets the suspension examined at all. The hearing looks at whether the officer had probable cause, whether you actually refused, and whether you were told what refusing would cost. That last item matters more than it looks, and here is why.
The Warning Is an Element, and Officers Get It Wrong
The refusal crime is not just the word no. Under section 316.1939, the State has to prove a stack of elements: probable cause, a lawful arrest, a request for the test, and, critically, that you were informed of the specific consequences before you refused. The statute requires two separate warnings, one that your license would be suspended for a year or 18 months, and one that refusal of a lawful test is itself a misdemeanor.
Think about what that means in practice. The criminal warning requirement is new. An officer working from an outdated implied consent card, or paraphrasing from memory at 2 a.m., can deliver the old warning that covers the suspension and never mentions the crime. Every element the State cannot prove is a defense, and the warning is recorded on body camera in most Tampa Bay agencies now, so this is a checkable fact rather than a swearing contest. The same warning question appears inside the license hearing under section 322.2615, which gives the defense two places to test it. This is the kind of mechanical detail I look for in every refusal case.
The 90 Day Difference Nobody Mentions
One more asymmetry worth knowing before anyone lectures you on whether refusing was smart. After a refusal suspension is sustained, you cannot even apply for a hardship license for business purposes until 90 days have passed. Blow over the limit instead and that waiting period is 30 days. The refusal route triples the stretch where you legally cannot drive at all, which for most working people is the consequence that actually hurts. I walked through the permit timeline in whether you can drive after a DUI arrest.
Questions About Breath Test Refusal
Is refusing a breath test a crime in Florida?
Yes, since October 1, 2025. A first refusal of a lawful breath or urine test after a DUI arrest is a second degree misdemeanor under section 316.1939, and a second or subsequent refusal is a first degree misdemeanor. Before that date, only a repeat refusal was criminal.
What is the license penalty for refusing the breath test in Florida?
A one year suspension for a first refusal and 18 months for a second, imposed administratively under section 322.2615. You have ten days from the notice of suspension to request a review of it.
Can a refusal charge be beaten?
The State must prove every element, including probable cause, a lawful arrest, and that the officer warned you of both the suspension and the criminal penalty before you refused. A missing or incomplete warning is a defense, and the warning is usually on video.
What This Means If You Refused
A refusal case is not a lost case. It is a case with different evidence: no number, an officer’s observations, a warning sequence that has to survive scrutiny, and a machine that never got involved. The elements of the new crime, and the ten day administrative clock, reward moving quickly and reading the record closely. That is the work, and it starts with the ten day rule and the refusal evidence itself.
Further Reading
- Fla. Stat. 316.1939, refusal to submit to testing, penalties
- Fla. Stat. 322.2615, suspension of license, right to review
- HB 687 (2025), the bill that criminalized a first refusal
WRITTEN AND REVIEWED BY
Rory Safir, ACS-CHAL Forensic Lawyer-Scientist
He is the author of The Florida DUI Trial Manual, an NHTSA-qualified instructor in the standardized field sobriety exercises, faculty of the National College for DUI Defense, and a former Assistant Public Defender in the Thirteenth Judicial Circuit.
This post is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. Refusal penalties are governed by section 316.1939, Florida Statutes, as amended effective October 1, 2025, and administrative suspensions and their review by section 322.2615, with hardship eligibility under section 322.271. Statutes change, so penalties and elements should be confirmed against the current text. Every case turns on its own facts, and past results do not guarantee a similar outcome.
