DUI Refusal — Refusing Breath Test in Florida

Refusing a breath test in Florida triggers an automatic 1-year license suspension under Florida Statute § 316.1932’s implied consent law — and as of October 1, 2025, under Trenton’s Law (§ 316.1939), a first refusal is now also a second-degree misdemeanor criminal charge, and a second refusal is a first-degree misdemeanor. The decision to refuse the breath test creates a separate criminal charge, a longer suspension than a .08+ blow, and a refusal the state will use as evidence of consciousness of guilt at trial — all of which require an attorney who understands both the DUI defense and the new criminal refusal law.

Legally reviewed by Tonmiel Rodriguez, Board Certified Criminal Trial Lawyer — last reviewed June 2026.

What Is Florida’s Implied Consent Law for DUI?

Under Florida Statute § 316.1932, any person who operates a motor vehicle in Florida is deemed to have given their consent to submit to an approved breath, blood, or urine test if lawfully arrested for DUI. This is the “implied consent” law — you agreed to testing the moment you got behind the wheel in Florida, whether you knew it or not. The officer must read you the implied consent warning before requesting the test. If you refuse after a lawful arrest and a proper implied consent advisement, the refusal triggers an automatic DHSMV suspension and — since October 1, 2025 — a criminal charge under Trenton’s Law.

What Is Trenton’s Law and What Does It Mean for DUI Refusals?

Trenton’s Law — codified at Florida Statute § 316.1939, effective October 1, 2025 — changed the legal landscape for breath test refusals in Florida by making refusal a criminal offense. Before October 1, 2025, a refusal carried only an administrative license suspension with no criminal charge. After that date, the law operates as follows:

Refusal	Administrative Suspension	Criminal Charge (Post 10/1/2025)	Criminal Penalties
First Refusal	1 year (mandatory)	Second-Degree Misdemeanor	Up to 60 days jail, $500 fine
Second Refusal	18 months (mandatory)	First-Degree Misdemeanor	Up to 12 months jail, $1,000 fine

The criminal refusal charge under § 316.1939 is separate from the underlying DUI charge. You can be charged with both — DUI under § 316.193 and criminal refusal under § 316.1939 — arising from the same traffic stop. The refusal charge does not require the state to prove impairment. It requires only proof that: (1) you were lawfully arrested for DUI, (2) you were properly advised of the implied consent consequences, and (3) you willfully refused the test.

Can the Refusal Be Used Against You at a DUI Trial?

Yes — and this is one of the most powerful tools prosecutors have in a DUI refusal case. Under Florida case law, a breath test refusal is admissible at trial as evidence of “consciousness of guilt” — the argument being that an innocent person would have nothing to hide from the test. Prosecutors argue it directly to juries. A skilled defense crosses that narrative by establishing the legitimate reasons a person might refuse: knowledge that the Intoxilyzer 8000 produces inaccurate results, fear of false positives from medical conditions, advice of counsel, or simple assertion of constitutional rights. Whether the refusal hurts a defendant turns on how the defense puts those reasons in front of the jury.

What Are the Defenses to a DUI Refusal Charge?

Defending a DUI refusal case involves attacking both the underlying DUI and the refusal charge independently. The DUI defense is built the same way as any DUI — traffic stop, field sobriety tests, investigation — because if the DUI charge falls, the refusal charge loses its predicate. But the refusal charge also has its own defenses:

• Unlawful arrest: If the DUI arrest was not supported by probable cause, the refusal charge cannot stand — the implied consent statute requires a lawful arrest as a prerequisite.
• Inadequate implied consent advisement: The officer must read the Florida implied consent warning verbatim before requesting the test. Any deviation or omission may make the refusal inadmissible and the charge defective.
• Involuntary or ambiguous refusal: If the defendant expressed confusion, asked questions, or made statements that were not a clear willful refusal, the “willful” element of the charge may be contested.
• Medical inability to provide a sample: If a physical condition (respiratory issue, COPD, asthma, panic attack) prevented the defendant from producing a breath sample, the failure to complete the test is not legally a “refusal.”
• Language barrier: If implied consent advisements were given in a language the defendant did not understand, the refusal may not be legally valid.
• Constitutional challenge: Post-Birchfield v. North Dakota, 579 U.S. 438 (2016), the constitutional boundaries of compelled breath testing remain an active defense area.

How Is a DUI Refusal Case Different From a DUI With a Breath Test?

A DUI breath test case gives the state a BAC number — a specific, quantified piece of evidence. The defense’s job in that case is to challenge the reliability of the number: Intoxilyzer 8000 calibration records, FDLE Form 16 inspections, observation period, partition ratio, mouth alcohol. A DUI refusal case gives the state no BAC number — but it gives them something different: the refusal itself, which they argue is consciousness of guilt. The state must prove impairment through the officer’s observations, field sobriety test performance, and the circumstances of the driving, without any chemical number. Each type of case has its own defense strategy, and neither is automatically stronger than the other. A refusal case without a high BAC can sometimes be easier to defend at trial — but Trenton’s Law now adds a second criminal charge that didn’t exist before October 2025.

What Happens to Your License After a Breath Test Refusal in Florida?

DHSMV imposes an administrative suspension at the moment of arrest for a refusal — 1 year for a first refusal, 18 months for a second. Under § 322.2615, you have 10 days from the date of arrest to request a formal DHSMV review hearing to contest the administrative suspension. Winning a formal review hearing can reinstate your license while the criminal case is pending. Missing the 10-day window waives the right to a hearing and triggers the full suspension automatically. Unlike a breath test result suspension (6 months for a first), the refusal suspension is 1 year — meaning you pay more administratively for refusing than for blowing over .08.

Trenton’s Law in Depth — Before and After October 1, 2025

Trenton’s Law takes its name from Trenton Mullis, a Florida child killed by a drunk driver who had previously refused breath testing. The law reflects a legislative determination that repeated refusal of DUI testing is a pattern of conduct that warrants criminal sanction independent of the underlying DUI. Understanding what changed on October 1, 2025 is essential to understanding the current legal landscape:

Legal Consequence	Before 10/1/2025	After 10/1/2025 (Trenton’s Law)
First refusal — administrative	1-year license suspension	1-year license suspension (unchanged)
First refusal — criminal	None	Second-degree misdemeanor (up to 60 days jail, $500 fine)
Second refusal — administrative	18-month license suspension	18-month license suspension (unchanged)
Second refusal — criminal	First-degree misdemeanor (pre-existing § 316.1939)	First-degree misdemeanor — same, but now paired with first-refusal criminal charge
Refusal as evidence at trial	Admissible as consciousness of guilt	Admissible — no change

The significant change: before Trenton’s Law, a first refusal generated only the administrative suspension. Now, a first refusal at a DUI stop in Florida generates a separate criminal misdemeanor charge that can be prosecuted alongside the DUI. The refusal charge is standalone — it does not require a DUI conviction to proceed. The state can try and convict on the refusal charge even if the DUI charge is dismissed or results in an acquittal.

Strategic Considerations — Should You Refuse or Submit to a Breath Test?

This is one of the most common questions I get. The right call depends on the specific circumstances of the stop. Here is how I think through it:

• Arguments for submitting: If you believe your BAC is at or below .08, a low test result is better evidence than a refusal — and avoids the Trenton’s Law criminal charge and the 1-year administrative suspension. A .06 or .07 result is powerful evidence for the defense. A refusal in that situation gives the state the consciousness-of-guilt argument without giving the defense the favorable BAC number.
• Arguments for refusing: If you know or believe your BAC is substantially above .08 — particularly .15 or higher — a refusal eliminates the most damaging piece of state evidence. The state must then prove impairment exclusively through the officer’s observations and field sobriety test performance, which are more contestable. The tradeoff is the 1-year administrative suspension and now the Trenton’s Law misdemeanor charge.
• Second refusal analysis: A second refusal is a first-degree misdemeanor with up to 12 months in jail — a significant criminal charge that may produce a worse outcome than a high BAC result. For clients with a prior refusal on record, the risk calculus shifts sharply toward submitting.

The decision point — when you are standing on the roadside at 2 AM — is not when you should be making this call without guidance. The best protection is to have an attorney’s number in your phone before you ever face a DUI stop. Call before deciding. In the real world, most people make the decision in the moment without counsel. Whatever choice was made, I work with the evidence as it exists and build the strongest defense available from the facts on the table.

Related DUI Defense Pages

• DUI Defense in Florida — Complete Overview
• First DUI in Florida — Penalties and Defense
• Second DUI in Florida — Enhanced Penalties
• DUI Breath Test — Intoxilyzer 8000 Defense
• DUI Blood Test Defense — Florida
• Field Sobriety Test Defense — Florida DUI
• Criminal Defense — Polk County

Frequently Asked Questions — DUI Refusal in Florida

Is refusing a breath test a crime in Florida?

Yes, as of October 1, 2025, under Trenton’s Law (§ 316.1939). A first refusal is a second-degree misdemeanor (up to 60 days jail, $500 fine) in addition to the 1-year administrative license suspension. A second refusal is a first-degree misdemeanor (up to 12 months jail, $1,000 fine) in addition to the 18-month suspension. Before October 1, 2025, a refusal carried only the administrative suspension and no criminal charge.

Will refusing the breath test help or hurt my DUI case?

It depends. Without a BAC number, the state must prove impairment through officer observations, field sobriety test performance, and driving behavior alone. That can be easier to contest at trial than a .12 BAC result. However, the refusal itself is admissible as consciousness of guilt, post-Trenton’s Law it adds a criminal charge, and the administrative suspension is 1 year vs. 6 months for a .08+ result. There is no universal answer — the calculus depends on the specific facts, the quality of the investigation, and the evidence available to the defense.

What is the implied consent warning in Florida?

Under § 316.1932, before requesting a breath test, the officer must advise you that Florida law requires you to submit to testing, that a refusal will result in license suspension (1 year for first refusal), and that the refusal can be used against you in a criminal proceeding. If the officer did not read the implied consent warning — or read it incorrectly — the refusal may be inadmissible and the criminal refusal charge may be defective.

Can a DUI refusal be charged alongside the DUI charge?

Yes. Under Trenton’s Law (§ 316.1939), the criminal refusal charge is a separate offense from the DUI charge under § 316.193. The state can — and in practice often will — charge both. Each count requires independent proof, but they arise from the same traffic stop and are typically prosecuted together in a single case.

Does refusing the breath test mean I automatically lose my license?

Not automatically — but only if you act within 10 days. Under § 322.2615, you have 10 days from the date of arrest to request a formal DHSMV review hearing to contest the administrative suspension. If you request the hearing and prevail, the administrative suspension is invalidated. If you miss the 10-day window, the full 1-year (first refusal) or 18-month (second refusal) suspension goes into effect automatically.