Legal Insight · DUI Defense
Refusing a Breath Test in Florida: Implied Consent, License Suspension, and Your Options
In Florida, a driver lawfully arrested for DUI is deemed to have consented to a breath, blood, or urine test. Under Section 316.1932, Florida Statutes, refusing after being warned that refusal will suspend the license results in an administrative suspension of one year for a first refusal and 18 months for a second or later refusal. The refusal can also be offered as evidence in the DUI case, and in some situations it can be charged as its own misdemeanor under Section 316.1939. The suspension is imposed by the Department of Highway Safety and Motor Vehicles (FLHSMV) regardless of what happens in court, and a request for review generally has to be made within 10 days of the arrest. Refusing does not end the DUI case, because the State can still try to prove impairment through the officer’s observations, video, and other evidence. This article explains what implied consent covers, what a refusal costs, how it compares with taking the test, and what can be challenged.
This is general information, not legal advice. Refusal cases turn on exactly what was said, when, and by whom.
What implied consent means
Every person who drives on Florida roads is treated as having agreed to chemical testing if they are lawfully arrested for DUI. The key words are “lawfully arrested.” The officer must have had a legal basis for the stop and probable cause for the arrest before the implied consent warnings apply. Several points are worth understanding:
- The warning matters. The suspension for refusal depends on the person having been told that refusal will suspend the license. How the warning was given, and whether the person understood it, is a common subject of review.
- It covers three kinds of tests: breath, blood, and urine. Breath is the usual choice because it is the least invasive.
- There is no penalty-free “maybe.” A person who says they will only test after speaking with a lawyer, or who does not complete the test properly, may be recorded as a refusal. Courts have generally not recognized a right to consult an attorney before deciding. This point should be verified against current case law for any particular situation.
- A compelled blood draw is possible in serious cases. When a crash causes death or serious bodily injury and the officer has probable cause of DUI, Section 316.1933 allows a blood sample to be taken even over an objection.
Which tests are covered, and which are not
Not everything an officer asks a driver to do at the roadside falls under implied consent. The table below separates the common steps. Treat it as a general guide, since the details depend on the facts.
| Step | When it usually happens | Covered by the implied consent suspension? | Typical consequence of declining |
|---|---|---|---|
| Field sobriety exercises (walk-and-turn, one-leg stand, eye test) | At the roadside, before arrest | Generally no. They are commonly treated as voluntary | No administrative suspension for declining, but the officer may rely on other signs of impairment to make an arrest |
| Roadside preliminary breath test | At the roadside, before arrest | Generally no. It is a screening tool | No refusal suspension in most circumstances; policies and exceptions can vary, so confirm for the facts |
| Evidentiary breath test | After arrest, usually at the station or a testing unit | Yes | Refusal suspension (1 year, or 18 months for a repeat refusal); refusal may be used as evidence |
| Blood test | After arrest, at a medical facility | Yes | Same refusal suspension; a warrant or a serious-injury circumstance can allow a draw anyway |
| Urine test | After arrest, when drugs are suspected | Yes | Same refusal suspension |
What a refusal costs
A refusal creates exposure on several tracks at once.
- Administrative suspension. Under Section 322.2615, FLHSMV suspends the license for one year after a first refusal and 18 months after a second or later refusal. The suspension starts from the arrest, and the officer’s citation typically works as a temporary permit for a limited time.
- Evidence in the DUI case. The prosecutor may tell the jury that the driver refused, and may argue that the refusal shows the driver believed the result would be bad. The defense can offer other explanations, such as confusion, fear of needles, a medical condition, or distrust of the machine.
- A possible separate charge. Section 316.1939 makes certain refusals a misdemeanor. The statute has been amended, and the degree of the offense and the persons it reaches have differed between versions (a person with a prior refusal suspension or fine faces a first-degree misdemeanor under the version we reviewed). Whether a first refusal can be charged on its own, and at what degree, should be checked against the version of the statute in force on the date of the arrest.
- Practical consequences. A 12-month or 18-month suspension affects work, school, and family transportation. For commercial drivers the effect can be more severe.
Refusing versus taking the test
People often ask which choice is “safer.” There is no answer that fits every case, because the result of a test is unknown until it is taken, and a refusal removes only one kind of evidence. The comparison below describes the general trade-offs and does not predict any outcome.
| Factor | If you take the test | If you refuse |
|---|---|---|
| License | Suspension if the result is .08 or higher (generally six months for a first suspension, longer for a prior); no suspension on this track if the result is under .08 | One-year suspension (18 months for a repeat refusal), whatever the DUI case later shows |
| Chemical evidence | The State has a number to use, though the machine, procedure, and timing can be challenged | The State has no number, but may use the refusal itself |
| Criminal case | The case can proceed on the test result plus observations | The case proceeds on observations, video, and the refusal |
| Hardship license | Often available after a short hard-suspension period for a first suspension | Often available for a first refusal after a waiting period, but not for everyone (for example, a driver with certain prior DUI convictions may be ineligible) |
| Prior record | A prior DUI conviction or refusal changes the suspension length and eligibility | A prior refusal lengthens the suspension and may add criminal exposure |
The numbers in the “take the test” column are general ranges and depend on the facts, including age and whether the driver holds a commercial license. See Florida DUI Charges: Penalties, Process, and What Happens After an Arrest for the penalty ladder if there is a conviction.
The 10-day window
The administrative suspension runs on its own clock. After a refusal, the driver generally has 10 days from the arrest to ask FLHSMV for a formal review hearing or to apply for a hardship license. Missing the deadline can leave the suspension in place without a hearing.
At a review of a refusal suspension, the issues are typically narrow. The hearing officer looks at questions such as:
- Whether the officer had probable cause to believe the person was driving or in actual physical control of the vehicle while impaired.
- Whether the person was lawfully arrested.
- Whether the person refused the test after being told that refusal would suspend the license.
The review decides only the administrative suspension. The result does not control the criminal case, and the criminal case does not control the suspension. A formal hearing can also be useful for a separate reason, because the officer may be required to testify, which can lock in the officer’s account before the criminal case moves forward.
If the suspension is upheld, a hardship license may be possible. We explain the process in How to Obtain a Hardship License After a DUI Arrest in Florida.
What can be challenged in a refusal case
No lawyer can promise a particular result. What a defense can examine includes:
- The stop and the arrest. If the stop or the arrest was unlawful, the implied consent warnings may not have applied at all.
- The warnings. Whether the officer read the required warning, in a way the person could understand, and whether a language barrier, injury, or medical condition interfered.
- What was actually a refusal. A person who tried to blow and could not, or who had a documented medical limit, is different from a person who flatly declined. Body-camera and station video often show how the exchange went.
- Equipment and procedure. Where a test was taken, the machine’s maintenance records, the observation period before the test, and the operator’s permit.
- Constitutional limits. In Birchfield v. North Dakota (2016), the U.S. Supreme Court held that the police may require a breath test after a lawful DUI arrest without a warrant, but may not criminally punish a driver for refusing a blood test without a warrant. How that ruling interacts with Florida’s refusal statute is a legal question that depends on the type of test and the version of the statute.
What to do after a refusal arrest
- Calendar the 10-day deadline from the date on the citation.
- Write down what happened as soon as possible: what was said, who was present, whether the exchange was recorded.
- Do not discuss the case with anyone other than your attorney. Social media posts and messages to friends can become evidence.
- Do not drive on a suspended license. Driving while suspended is a separate offense. See Reckless Driving Charges in Florida for how driving charges stack on each other.
- Speak with a DUI attorney early. Both tracks start immediately.
What this means for your case
A refusal is a decision with two certain costs, a one-year or 18-month administrative suspension and the possibility that the refusal is used as evidence, and one uncertain benefit, which is that the State has no test number. It does not prevent a DUI conviction, and a DUI conviction carries the penalties described in our DUI penalties guide, including adjudication that cannot be withheld (see Withhold of Adjudication in Florida). Because the license deadline is short and the criminal case moves more slowly, the first week after an arrest is the part of the process that is hardest to repair later.
Frequently asked questions
What happens if I refuse a breathalyzer in Florida?
Your license is suspended administratively for one year on a first refusal and 18 months on a second or later refusal. The refusal can also be used as evidence in the DUI case, and a refusal may be charged as a misdemeanor in some circumstances under § 316.1939. The DUI charge itself continues.
Can I refuse field sobriety exercises?
Generally yes. Field sobriety exercises and the roadside preliminary breath test are not part of the post-arrest implied consent process, so declining them does not trigger the refusal suspension. An officer can still arrest based on other observations, such as driving pattern, odor, speech, and appearance.
Can I ask for a lawyer before deciding whether to take the test?
You may ask, but Florida courts have generally not required officers to wait for a lawyer, and an extended delay or conditional answer may be recorded as a refusal. Do not rely on a request for counsel as a way to avoid the decision.
Will the refusal be used against me in court?
It can be. The State may present the refusal as evidence, and the defense may present explanations. How much weight it carries depends on the facts and the jury.
How long do I have to challenge a refusal suspension?
Generally 10 days from the arrest to request a formal review hearing. The date on the citation controls, so check it as soon as possible.
Can I get a hardship license after a refusal?
Often yes after a first refusal, usually after a waiting period and with DUI school enrollment, but not in every case. Certain prior DUI convictions can make a driver ineligible. See How to Obtain a Hardship License After a DUI Arrest in Florida.
Speak with a Fort Lauderdale DUI attorney
If you were arrested for DUI and refused a test, or you are not sure how the officer recorded your answer, the 10-day clock is already running. MK Law’s DUI defense attorneys handle both the license review and the criminal case across Broward County and South Florida.
Call MK Law at 954.865.6032, available 24/7.
This article provides general information and is not legal advice. Legal outcomes depend on the specific facts, applicable law, and current procedures. Reading this article or contacting MK Law does not by itself create an attorney-client relationship.