Breath Test Refusal

Refusing a breath test in Florida used to be a license problem. As of October 1, 2025, it can be a criminal one. A new law changed what a refusal means, and a refusal case now turns on whether the officers followed every step before, during, and after they asked you to blow.

As an ACS-CHAL Forensic Lawyer-Scientist who sits on the National College for DUI Defense (NCDD) National Task Force on alcohol and drug testing devices, I defend both sides of this: the breath result when there is one, and the refusal when there is not.

Florida’s Implied Consent Law

When you got your Florida license, you agreed to something called implied consent. Under section 316.1932, driving in Florida means you consent to a lawful breath, blood, or urine test if you are arrested for DUI. Refusing that test carries consequences, and the officer is required to warn you what they are before you decide.

There is a constitutional layer underneath this. The United States Supreme Court has held that a breath test is a search that goes with a lawful arrest, which is why a state is allowed to make refusing one a crime. See Birchfield v. North Dakota, 579 U.S. 438 (2016). At the same time, Florida courts have recognized that this statutory consent is not the same thing as freely given Fourth Amendment consent, so the lawfulness of the stop, the arrest, and the request all still matter. See Williams v. State, 167 So. 3d 483 (Fla. 5th DCA 2015).

What Changed on October 1, 2025

A law known as Trenton’s Law changed the stakes. Before it, a first refusal of a breath or urine test was an administrative matter: you lost your license, but you were not charged with a crime for refusing. Now a first refusal is a second-degree misdemeanor, punishable by up to 60 days in jail and a $500 fine, on top of the license suspension. A second or later refusal remains a first-degree misdemeanor. The officer now has to tell you that refusing is itself a crime, not only a license penalty. The law is not retroactive, so a refusal before October 1, 2025 is still judged under the old rules.

A refusal starts two cases at once. The administrative side suspends your license and runs on a 10-day clock. The criminal side, since Trenton’s Law, can charge the refusal itself, while the underlying DUI keeps moving forward.

Refusing Does Not End the DUI

A refusal does not make the DUI disappear. The State can still prosecute the DUI using the officer’s observations, the field sobriety exercises, and the video, and it can argue that your refusal shows consciousness of guilt. You can end up facing the license suspension, a refusal charge, and the DUI all at once. That is why a refusal case needs a defense aimed at all of it.

How a Refusal Is Challenged

The new law makes the procedure matter more, not less. We look at whether the stop was lawful, whether there was probable cause to arrest you for DUI, and whether the officer read the implied consent warning correctly, including the new warning that refusal is a crime. We look at whether there was a real refusal at all, or whether confusion, a language barrier, or a medical condition was treated as one. When a step was missed, the refusal charge and the evidence that comes with it can be challenged. Many of these cases also turn on the same procedure and timing issues that drive a breath result case.

A refusal triggers an administrative suspension and can be argued to a jury, but when the stop or the request to test was unlawful, the refusal and its consequences can be challenged.

When a Refusal Can Be Challenged

A refusal is not automatically valid just because it happened. The administrative suspension and the use of a refusal as evidence both depend on the stop and the request being lawful in the first place. If the traffic stop lacked a legal basis, if there was no lawful basis to demand the test, or if the implied consent warning was not properly read, the foundation for the refusal can be attacked. We examine whether the officer had grounds for the stop and the arrest and whether the request to test was made the way the law requires.

Protecting Your License on Two Tracks

A refusal runs on two tracks at once, the criminal case and the administrative suspension of your license, and each has its own deadline. The administrative side moves fast, with a short window to demand a formal review, which is why acting quickly matters. We handle both tracks together, challenge the basis for the refusal where one exists, and connect it to the rest of the case, because the same unlawful stop that taints a breath result can also undermine a refusal built on top of it.

Why This Matters in Your Case

A refusal case is no longer a simple license matter. It is a criminal charge that rises or falls on whether the police followed the law. We defend the refusal, the license, and the DUI together, and we start the day you call.

Refusal is not the simple choice it used to be, and I make sure clients understand the new landscape and that a refusal case can still be fought. I look at whether the stop and the arrest were lawful, whether the officer gave the warning the new law requires, and whether the request for the test was proper in the first place, because a refusal charge built on a bad stop or a botched warning is a charge with a soft foundation. The law got tougher, and that makes getting the details right more important, not less.

Questions About Breath Test Refusal

Is refusing a breath test a crime in Florida?

Since October 1, 2025, yes. Under Trenton’s Law, a first refusal of a lawful breath or urine test is a second-degree misdemeanor, up to 60 days in jail and a $500 fine, on top of the license suspension, and officers must warn you that refusal is a crime. A second or later refusal is a first-degree misdemeanor. The law is not retroactive.

What happens if I refuse a breath test in Florida?

You face an administrative license suspension of one year for a first refusal, or 18 months for a second, and, for refusals on or after October 1, 2025, a criminal charge for the refusal itself. The DUI case can still go forward.

Does refusing the test mean the DUI goes away?

No. The State can still prosecute the DUI using the officer’s observations, field sobriety exercises, and video, and it can use your refusal as evidence. Refusing removes the breath number, but it does not remove the case.

Can a breath test refusal be challenged?

Yes. The refusal charge depends on whether the stop and arrest were lawful and whether the officer gave the correct implied consent warning, including the new warning that refusal is a crime. Whether you truly refused, or were unable to comply, also matters.

How long do I have to save my license after a refusal?

You have 10 days from the arrest to request a formal review hearing with the DHSMV. Missing that window lets the suspension take effect without review.

Related: the main breath test defense page, how we challenge a breath test, and the 20-minute observation period.

This page is general information, not legal advice, and it does not create an attorney-client relationship. Breath testing and refusal in Florida are governed by Fla. Stat. 316.1932, 316.1934, and 316.1939, as amended by Trenton’s Law (HB 687, 2025), and the Florida Administrative Code chapter 11D-8. Procedures and rules change, and every case turns on its own facts. Past results do not guarantee a similar outcome.