What Happens If You Refuse a Breathalyzer in Florida Twice?

By Jonathan Blecher on September 8, 2025

Man Doing A Breathalizer Test

Driving under the influence (DUI) laws in Florida are strict, and refusing a breathalyzer test can carry serious consequences. While many drivers believe that refusing a chemical or physical test will protect them, the reality under Florida law is much more complicated. The penalties for a first refusal are significant, but a second refusal to submit can bring criminal charges, longer license suspensions, and lasting damage to your driving record.

Jonathan B. Blecher, P.A., a seasoned criminal defense attorney in Florida, has represented numerous individuals facing DUI arrest charges. With decades of experience, he understands both the legal implications of refusing a breath test and the potential defenses available under Florida’s implied consent laws.

Florida’s Implied Consent Law

The starting point for understanding a DUI refusal is Florida’s Implied Consent Law, found in Florida Statute 316.1932. Under this statute, any person who accepts the privilege of operating a motor vehicle in Florida is deemed to have given consent to submit to a lawful test of breath, blood, or urine if a law enforcement officer has reasonable grounds to believe they are driving under the influence.

This means that simply by driving, you’ve already agreed in advance to comply with a request for testing. If a police officer lawfully arrests you and requests a chemical or physical test, refusing has automatic consequences, even if you are never convicted of DUI.

What Happens After the First Refusal?

A first refusal to submit to a breathalyzer or other DUI test results in an automatic license suspension of one year. This administrative suspension is handled by the Florida Department of Highway Safety and Motor Vehicles (FLHSMV), not the criminal court.

You do have the right to request a formal review hearing within 10 days to challenge the suspension. If you don’t, or if you lose the hearing, the suspension remains in effect. Some drivers may qualify for a hardship license, which allows limited driving for work or school after serving a 90-day “hard suspension” period.

Importantly, this first refusal is not considered a criminal offense. However, it will stay on your record and can be used against you if you refuse again in the future.

The Serious Consequences of a Second Refusal

A second refusal to submit is treated much more harshly under Florida law. Under Florida Statute 316.1939, a second or subsequent refusal is a first-degree misdemeanor. Refusing a breathalyzer test twice can result in criminal charges, including up to one year in jail, 12 months of probation, and a $1,000 fine.

Beyond the criminal penalties, a second DUI refusal carries an 18-month driver’s license suspension. Unlike a first-time refusal, you are not eligible for a hardship license if it’s your second refusal. That means you could be left without any legal driving privileges for up to 18 months.

Because the refusal itself is a crime, the prosecutor doesn’t have to prove you were over the legal limit of 0.08 BAC. They only need to show that:

  • The law enforcement officer lawfully arrested you for DUI.
  • The officer requested a breath, blood, or urine test.
  • You were advised of the consequences of refusal.
  • You still refused

This makes the second refusal particularly dangerous, as it can result in additional criminal charges on top of any DUI case.

How Prior Refusals Affect Your Case

A prior refusal on your record will almost always resurface in a new DUI case. Prosecutors can use it as evidence that you knew the consequences and still refused. Judges may also view it as a sign of willful noncompliance with Florida’s implied consent laws.

This prior refusal also limits your ability to challenge suspensions or seek leniency. The Florida Supreme Court has consistently upheld the constitutionality of implied consent laws, reinforcing that drivers do not have a “right” to refuse testing without consequences.

Possible Defenses to a DUI Refusal

Even with tough laws, an experienced criminal defense attorney can raise effective defenses in a refusal case. Some possible defenses include:

  • Unlawful Stop or Arrest: If the police officer lacked probable cause to make the stop or arrest, any refusal may be invalid.
  • Improper Warnings: The officer must clearly inform you of the consequences of refusal. If the warning was vague, misleading, or not given at all, the refusal may not hold up in court.
  • Confusion or Medical Condition: If you were unable to provide a sample due to a medical issue, the refusal might be challenged.
  • Officer Error or Equipment Issues: If the officer failed to follow procedures or misclassified your response, it could undermine the case.

Because these defenses often hinge on technicalities and witness testimony, having an experienced attorney review every detail of your DUI arrest is critical.

Woman Being Stopped By Police

Strategic Considerations: When Refusal Might Help or Hurt

There are scenarios where refusing a breath test may feel strategically beneficial. For example, if you believe your BAC is well above the legal limit, refusing could make it harder for the prosecutor to prove DUI beyond a reasonable doubt. However, refusal doesn’t prevent conviction. Prosecutors can still rely on field sobriety tests, officer testimony, and other evidence to build their case.

On the other hand, refusing, especially a second refusal, can backfire badly. Not only do you risk longer license suspensions and no eligibility for a hardship license, but you also face additional criminal charges independent of any DUI case.

The Role of an Experienced Attorney

Because a second refusal can result in both criminal penalties and loss of driving privileges, it’s essential to work with an experienced criminal defense attorney. Jonathan B. Blecher, P.A., understands the intricacies of Florida’s DUI refusal laws and how to challenge administrative suspensions, negotiate with prosecutors, and present strong defenses in court.

He also guides clients through the process of requesting formal review hearings, exploring eligibility for limited driving privileges (when possible), and protecting their record from long-term consequences.

Protecting Your Driving Privilege

Losing your Florida driver’s license can affect every part of your life—from commuting to work, to caring for family, to basic independence. A second refusal leaves no room for a hardship license, which makes legal representation even more critical. Acting quickly after a DUI arrest gives your lawyer the best chance to preserve your driving privileges and build a defense.

Contact Jonathan B. Blecher, P.A., Today

Refusing a breathalyzer test in Florida is never a simple decision. A first refusal already carries an automatic license suspension, but a second refusal to submit can escalate the situation into criminal territory. Under Florida statute, it becomes a first-degree misdemeanor, carrying jail time, fines, and a 18-month license suspension without hardship eligibility.

If you are facing a DUI refusal charge, especially a second or subsequent refusal, it’s vital to consult with a knowledgeable DUI defense attorney immediately. Jonathan B. Blecher, P.A., offers free consultations to review your case, explain your rights, and develop a defense strategy tailored to your situation. 

When your license, freedom, and future are on the line, don’t face Florida’s implied consent laws alone. With an experienced attorney by your side, you can fight for the best possible outcome. Contact Jonathan B. Blecher, P.A., today.

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