Can You Refuse a Breathalyzer in Florida
By Jonathan Blecher on September 8, 2025
H2: The Immediate Consequences of Refusing DUI Chemical Testing in Florida
Florida's laws regarding chemical testing for impaired driving have changed as of October 2025. Before these changes occurred, if a driver had refused a breathalyzer or urine test following an arrest, they faced an immediate administrative license suspension if impairment could not be proven in court.
Now, refusing to submit to a breath, urine, or blood test following an arrest in Florida includes a second-degree misdemeanor criminal charge. This is in addition to the immediate license suspension for refusing to submit to chemical testing following an arrest.
Refusal to participate is its own criminal charge, where, upon conviction, you will experience a criminal record, monetary fines, and potential jail time. First-time refusal is a criminal offense, while a second refusal is a first-degree misdemeanor.
Both of these charges can result in jail time.
Further, judges can no longer withhold adjudication of guilt, which means that even if an individual has a clean criminal record, the court is required to treat a first-time refusal as a criminal conviction.
Florida's implied consent laws mean that as soon as you get behind the wheel of a vehicle here in the state, you are legally obligated to consent to breath, urine, or blood tests in the event you are arrested for DUI. Your refusal to submit to either a breathalyzer or a urine test after an arrest can be used against you in court, likely worsening the criminal case against you.
It is important to remember that you can still be convicted of a DUI here in Florida without consenting to testing or participating in a Field Sobriety Test. Prosecutors can look to other forms of evidence to convict you, including an officer’s testimony or body camera footage.
Every detail of your behavior during a DUI arrest will be carefully observed and documented, potentially being used against you at a later date.
Understanding the full weight of these immediate consequences is critical when deciding how to respond at the scene of a DUI stop. Under Florida Statute 316.1939, the act of refusing chemical testing following a lawful arrest is treated as a standalone criminal offense, separate and apart from any underlying DUI charge. This means that even if the DUI charge is later reduced, dismissed, or results in an acquittal, the refusal charge remains and must be resolved independently.
The criminal penalties escalate significantly with each subsequent refusal. A first-time refusal under Florida law constitutes a second-degree misdemeanor, carrying potential penalties of up to 60 days in jail, six months of probation, and a $500 fine. However, if you have a prior refusal on your record — even from a previous, unrelated incident — and you refuse again following a second lawful DUI arrest, that second refusal becomes a first-degree misdemeanor. First-degree misdemeanors carry penalties of up to one year in jail, one year of probation, and a $1,000 fine. These criminal penalties are in addition to, not instead of, the administrative license suspension that also takes effect immediately.
It is also worth noting that once you are placed under lawful arrest, your refusal can and will be introduced as evidence of a consciousness of guilt during trial. Prosecutors routinely argue that an innocent person would have no reason to decline the test. For this reason, the moments immediately following a DUI arrest are among the most consequential in your entire case. Contacting an experienced DUI defense attorney as soon as possible after your arrest gives you the best opportunity to navigate both the refusal charge and the underlying DUI charge effectively.
H2: License Suspension For Refusing DUI Testing in Florida
The Florida Department of Highway Safety and Motor Vehicles (FLHSMV) imposes an immediate license suspension upon a driver’s refusal to submit to blood, urine, or breathalyzer tests after an arrest. This is in addition to the misdemeanor criminal charges mentioned earlier:
License suspensions for refusal here in Florida are as follows:
- 12 months for a first-time refusal.
- 18 months for a second-time refusal.
Following your arrest, you may be provided with a 10-day temporary driving permit. Additionally, you will need to request a review hearing directly with the Florida DHSMV to avoid the suspension. Failing to arrange for this hearing within the ten-day window will result in you experiencing the full license suspension.
To complete this work correctly, you should retain the services of a qualified attorney as soon as reasonably possible following your arrest, affording them the time to file the required paperwork within the ten-day window.
Further, your attorney can represent you during the hearing itself, working to secure a permit that will allow you to drive. During this administrative hearing, your attorney will also gather important evidence and begin to develop a defense strategy that is unique to your case.
Should an individual's license suspension be upheld, your attorney can work to apply for a hardship license on your behalf that could allow you to drive until your case has concluded. Each case is unique, and your attorney will need time to carefully review the evidence against you and develop a legal strategy that supports your best interests.
Remember, this license suspension is a matter that is entirely separate from the criminal charges against you. Early legal intervention remains an important factor in navigating both the criminal charges and the upcoming license suspension.
You should act quickly in the event you are arrested here in Florida for DUI by contacting an attorney who maintains a long track record of success in cases like yours. Contact your attorney as soon as reasonably possible.
The moment you are able to contact someone following your arrest is the moment you should contact your attorney.
One of the most important things to understand about license suspension following a breath test refusal is that the suspension process operates independently from the criminal court system. The Florida Department of Highway Safety and Motor Vehicles (FLHSMV) handles administrative license suspensions through a separate civil process governed entirely by Florida’s implied consent law. This means that even before you appear in criminal court, your driving privileges may already be suspended.
Under Florida law, a first refusal triggers a one-year administrative license suspension, while a second or subsequent refusal results in an 18-month suspension. After being served with notice of suspension, you have only 10 days to request a formal review hearing with the FLHSMV. Missing this deadline means the suspension takes effect automatically and without review. During the review hearing, your attorney can challenge the legality of the stop, the lawfulness of the arrest, and whether proper implied consent warnings were given before the refusal. A successful challenge can result in the suspension being invalidated entirely.
In cases where the suspension is upheld, a hardship license may still be available, allowing you to drive for essential purposes such as work, school, or medical appointments. Eligibility for a hardship license depends on your record and the specific circumstances of your case. This is another reason why securing qualified legal representation immediately after your arrest is so important — missing the 10-day window to request a review hearing eliminates options that cannot be recovered later.
H2: Field Sobriety Test Refusal in Florida For 2026
Field Sobriety Tests (FST) are different from the testing that is completed by law enforcement following an arrest for DUI here in Florida. Blood, breath, and urine tests conducted by law enforcement following an arrest are mandatory, carrying their own unique criminal charges should they be refused.
FSTs like the Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and the One-Leg Standing Test are used to gather evidence that supports a potential arrest.
The truth is that these field sobriety tests are all voluntary, and residents of Florida have the legal right to refuse to participate without facing any legal consequences. You will not face an immediate license suspension should you politely refuse to participate.
Law enforcement will carefully request or ask that you participate, but drivers can explain to them that they wish to pass on the opportunity. Remain calm and polite with every interaction you have with law enforcement, and explain to them that you understand the state’s laws surrounding such tests and wish to maintain your legal right to refuse to participate.
It is not an admission of guilt if you politely decline to take part in a field sobriety test. These tests are highly subjective, and it is possible for completely sober individuals to fail such tests. Officers are tasked with obtaining what is known as probable cause for a DUI arrest, and there are instances in which you could still be arrested for DUI even if you politely refused to take part in an FST.
Once you are arrested, however, you are legally obligated to take part in chemical testing.
Reach out to a qualified attorney the moment you can following an arrest, and lean on their knowledge and expertise to navigate the upcoming legal process.
Understanding the distinction between refusing a field sobriety test and refusing a chemical test is one of the most important things any Florida driver can know before encountering a DUI stop. While both types of tests are used by law enforcement to build a case for probable cause or to gather evidence of impairment, they carry fundamentally different legal consequences when refused.
Field sobriety exercises — including the Walk-and-Turn, the One-Leg Stand, and the Horizontal Gaze Nystagmus test — are not governed by Florida’s implied consent law. Because these tests occur before a formal arrest, and because they are considered entirely voluntary, refusing them carries no automatic administrative or criminal penalties. Officers may not always make this distinction clear at the roadside, which can lead drivers to believe they are legally required to participate. You are not. Politely declining to perform these exercises is your legal right, and doing so does not trigger a license suspension or criminal charge.
Chemical tests, by contrast, fall squarely within Florida’s implied consent framework. Once you have been lawfully arrested on suspicion of DUI, the implied consent law obligates you to submit to a breath, urine, or blood test. Refusing at this post-arrest stage is what triggers the one-year license suspension, the potential misdemeanor charge, and the admissibility of your refusal as evidence. The stakes are far higher than with a pre-arrest FST refusal, and the consequences begin almost immediately upon refusal. Knowing this distinction can help you make more informed decisions throughout the entire traffic stop encounter.
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