I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. Before private practice I taught at the police academy and served as chief operating officer of the Hillsborough County Public Defender’s Office, and I have watched the law of DUI blood draws move steadily in one direction for more than a decade: toward the warrant. Marlin is the clearest Florida statement yet of where that road ends, and our attorneys are already using it.

What Does the Fourth Amendment Require Before Police Draw Your Blood?

A warrant, unless a recognized exception applies — and the United States Supreme Court has spent the last thirteen years narrowing those exceptions for blood. Drawing blood is a search. In Missouri v. McNeely, 569 U.S. 141 (2013), the Court rejected the argument that because alcohol dissipates from the bloodstream over time, every drunk-driving investigation is automatically an emergency that excuses the warrant; exigency has to be shown case by case, on the totality of the circumstances. (Read the opinion.) Three years later, in Birchfield v. North Dakota, 579 U.S. 438 (2016), the Court drew the line that governs every roadside today: police may administer a breath test as a search incident to a lawful DUI arrest, but not a blood test — and a state cannot deem drivers to have “consented” to a blood test by criminalizing refusal. (Read the opinion.)

The practical takeaway is simple: when officers want breath, the arrest itself is usually enough; when they want blood, they need your actual agreement, a judge’s signature, or a genuine emergency they can prove later.

What Did the Fourth DCA Decide in State v. Marlin?

That prosecutors had been reading one of the court’s own opinions too generously, and that the warrant requirement means what it says. In State v. Marlin, No. 4D2025-1448 (Fla. 4th DCA Sept. 2, 2026), a driver drifted onto the shoulder of the Turnpike and struck four motorcycles, killing one rider and injuring two others. He was charged with two counts of DUI manslaughter, two counts of DUI with serious bodily injury, and additional injury and property-damage counts. Officers asked him to consent to a blood draw. He refused. Roughly two hours after the crash, law enforcement called a prosecutor, who told them to apply for a search warrant; about thirty minutes later the same prosecutor called back and said they could proceed without one because “exigent circumstances existed due to the elapsed time.” First responders then drew his blood by force.

The trial court initially denied suppression, openly “struggling” with a sentence in the Fourth District’s 2023 decision in State v. Acevedo that said an officer with probable cause could “coerce” a blood draw. On rehearing the judge reversed course and suppressed the results. The State appealed, and the Fourth District affirmed, holding:

1. No per se exigency. The natural metabolization of alcohol does not, by itself, justify a warrantless blood draw. Exigency must be decided on the totality of the circumstances in the particular case.
2. Warrant required regardless of implied consent. In the court’s words, “Unless a motorist gives actual consent or a court determines under the totality of the circumstances that exigent circumstances exist, a warrant must be obtained for a blood draw to satisfy the Fourth Amendment. This is true regardless of a state’s implied consent laws.”
3. The crash statute is a directive to get a warrant, not a substitute for one. Section 316.1933, which tells officers to obtain blood in crashes causing death or serious injury, “must assume the blood draw will be obtained with a warrant, absent consent or proof of exigent circumstances.”
4. Acevedo’s “probable cause” language is withdrawn. The court called that sentence “unnecessary to our decision and thus non-binding dicta,” noted that “the State has taken Acevedo’s language and run with it as a new exception to the Birchfield warrant requirement,” and receded from it: “We simply do not have the authority to create an exception contrary to United States Supreme Court authority.”

For defense lawyers who have been hearing “Acevedo says probable cause is enough” in suppression hearings for three years, that fourth holding is the one that matters most.

Does Florida’s Implied Consent Law Let Police Take Blood Anyway?

No — and this is the argument the State lost in Marlin. Florida has two statutes that talk about blood. Section 316.1932(1)(c), Florida Statutes, deems a driver who appears for treatment at a hospital, clinic, or “other medical facility” to have consented to a blood test when a breath or urine test is impractical or impossible, and expressly defines “other medical facility” to include an ambulance or other medical emergency vehicle. Section 316.1933, Florida Statutes, provides that when an officer has probable cause to believe an impaired driver caused death or serious bodily injury, the officer “shall require” a blood test and “may use reasonable force if necessary.”

Read in isolation, those statutes sound like authority to take blood on probable cause alone. Read against McNeely and Birchfield, they cannot be. A statute cannot supply the “consent” the Fourth Amendment requires — Birchfield said so directly — and the Fourth District followed the Fifth District’s decision in State v. Liles, 191 So. 3d 484 (Fla. 5th DCA 2016), which had already rejected the argument that statutory implied consent satisfies the Constitution when a driver actually refuses. Marlin therefore reads section 316.1933 as a set of marching orders to officers — go get the blood in serious crashes — with an unstated constitutional condition: get a warrant, unless the driver agrees or a real emergency exists.

Judge Shepherd’s concurrence adds two clarifications that will matter in Tampa hospital cases. First, actual consent and statutory implied consent are different things: if a driver voluntarily agrees to a blood draw, officers do not have to recite the implied consent warnings, and the technical requirements of the implied consent statute do not apply. Second, the location of the draw is not what decides the question. An ambulance is a “medical facility” under the statute, but a nonconsensual blood draw in a hospital “must still satisfy either the warrant requirement or the impractical/impossible prong” of the implied consent law. Being in an emergency room does not waive your Fourth Amendment rights.

When Is a Warrantless Blood Draw Still Lawful in Florida?

Two doors remain open, and the State has to walk through one of them:

The consent door is where most Tampa Bay cases are actually litigated. A driver in a hospital bed, in pain, surrounded by uniforms, who says “okay” after being told that officers will “just get a warrant” if he does not, has not given the kind of free and voluntary consent the Constitution requires — that is the fact pattern Acevedo itself arose from, where the trial court found the driver had been “misadvised that if he did not agree, law enforcement would get a warrant and take a blood sample against his will.” Our attorneys take the recording, the timeline, and the exact words used in every one of these cases, because the difference between consent and acquiescence is usually a single sentence.

What Counts as Exigent Circumstances — and What Does Not?

The test is the totality of the circumstances, and Marlin is a textbook example of the State failing it. Alcohol dissipating in the blood is a factor; it is never enough by itself. Delay that officers could have avoided does not count in the State’s favor. In Marlin, law enforcement had two and a half hours after the crash, a prosecutor on the phone who initially told them to get a warrant, and no explanation for why a warrant could not have been sought during that window. Calling the passage of time an “emergency” when the passage of time was the officers’ own choice is exactly what McNeely forbids.

Genuine exigency looks different: a mass-casualty scene that occupies every available officer, a driver being airlifted to a distant trauma center, a medical procedure that will contaminate the sample, or — under the Supreme Court’s plurality decision in Mitchell v. Wisconsin (2019) — an unconscious driver who cannot take a breath test and requires immediate medical care. Even there, the analysis is fact-specific, and the State bears the burden.

What Happens to a DUI Case When the Blood Draw Is Suppressed?

The “unlawful blood alcohol level” theory of the case usually collapses, but the impairment theory often survives — which is why suppression is the beginning of the fight, not the end. Florida charges DUI on two alternative theories: a blood or breath alcohol level of 0.08 or more, or impairment of normal faculties. Without the blood result, the State cannot prove the number. It can still call the officers, play the body-camera footage, and argue driving pattern, odor, speech, and field exercises. In a crash case it will also argue causation and the mechanics of the collision, which have nothing to do with the blood.

So the real value of Marlin is leverage and structure. A DUI manslaughter case with a suppressed blood result is a very different negotiation than one with a 0.18 on the lab report, and it is a very different trial. Our full treatment of that landscape is in what DUI manslaughter is in Florida and how DUI manslaughter cases are defended. And where the State cannot get the blood it drew, it will often try to subpoena the blood the hospital drew for treatment — a separate battle covered in can the State get your medical records in a Florida DUI case.

For more about our defense strategies, visit our DUI defense page.

Does Marlin Apply in Hillsborough County?

Yes. Under Pardo v. State, 596 So. 2d 665 (Fla. 1992), “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.” Marlin was decided by the Fourth District, which sits in West Palm Beach, but no other district court has adopted the probable-cause reading of Acevedo — Acevedo was the Fourth District’s own case, and the Fifth District’s Liles already pointed the same direction Marlin does. Until the Second District or the Florida Supreme Court says otherwise, a Hillsborough, Pinellas, or Pasco circuit judge is bound to follow it. Our attorneys are citing it in pending motions now.

What Should You Do If Police Took Your Blood After a Crash?

Write down everything you can remember about how it happened, before the details fade, and get counsel before you talk to anyone else:

1. Whether you were asked, and what you said. “Yes,” “no,” “I guess,” and silence are four different legal events.
2. What you were told would happen if you refused. A threat to “get a warrant anyway” or to charge you with refusal is the heart of a voluntariness challenge.
3. The timeline. When the crash happened, when officers arrived, when the draw occurred, and whether anyone mentioned a warrant. In Marlin the timeline was the case.
4. Where the draw happened and who did it. Roadside, ambulance, or hospital; paramedic, nurse, or technician. Section 316.1933 limits who may draw blood and how.
5. Whether the hospital also drew blood for treatment. That sample is governed by different rules, and the State will come for it.

Do not assume the blood result is unassailable because it has a number on it. In Florida today, the number is only as good as the way it was obtained.

Your blood is only part of what happens at a crash scene. Our guide to whether the Florida accident report privilege requires you to talk to police after a traffic crash covers what you must tell the officer, what you can decline, and when your words can be used against you.

Frequently Asked Questions About Warrantless Blood Draws in Florida

Can I refuse a blood test in Florida?

You can decline to consent, and after Birchfield and Marlin the State cannot use your refusal as permission to draw blood without a warrant. Refusal of a lawfully requested blood test is admissible in evidence, and Florida’s refusal statute is written broadly, but whether refusing a warrantless blood draw can be punished criminally is constitutionally contested after Birchfield. If you refused and were charged, that is a defense issue, not a foregone conclusion.

Police got a warrant for my blood. Is that the end of it?

No. A warrant moves the fight from “was there a warrant” to “was the warrant good.” The affidavit must establish probable cause on its face, the officer’s sworn statements must be accurate, and the execution must comply with the statute’s limits on who may draw blood. Warrant-based draws are challenged less often than they should be.

I was in the hospital when they drew my blood. Doesn’t implied consent cover that?

Only if you did not refuse and a breath or urine test was genuinely impractical or impossible — and even then, Marlin and Judge Shepherd’s concurrence make clear that being in a hospital or ambulance does not lower the constitutional bar. If you refused, the State needs a warrant or real exigency, wherever you were.

What if I was unconscious?

The Supreme Court’s plurality in Mitchell v. Wisconsin said that an unconscious driver who cannot take a breath test will “almost always” present exigent circumstances, because the driver needs medical care and the evidence is disappearing. That is a strong argument for the State, but it is still a totality-of-the-circumstances analysis, and the State still bears the burden of proving it.

Does Marlin help me if I was charged before September 2026?

Potentially, yes. If your case is pending, a motion to suppress can be filed or renewed now. If you already pleaded or were convicted, the analysis is more complicated and time-sensitive; talk to an attorney about your options immediately rather than assuming the window has closed.

The officer said section 316.1933 required him to take my blood. Was he wrong?

He was reading the statute the way the State read it in Marlin. The Fourth District has now said the statute is a directive to obtain blood in serious crashes with a warrant, absent consent or true exigency. The word “shall” in the statute does not override the Fourth Amendment.

If you or a family member is facing a DUI, DUI with serious bodily injury, or DUI manslaughter charge anywhere in Tampa Bay and blood was drawn without your agreement, the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — want to see the timeline before anyone talks about a plea. Call (813) 727-7159. The law changed on September 2, 2026, and it changed in your favor.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Tampa criminal defense attorney Rocky Brancato. As a member of the National College for DUI Defense (NCDD) and the DUI Defense Lawyers Association, and as a former police academy instructor who taught officers how to conduct criminal investigations, I bring a unique perspective to every Florida DUI charges case — I know how officers are trained and where their procedures fall short.

How Does Florida Define DUI?

Under §316.193, you can face DUI charges in Florida if you are driving or in “actual physical control” of a vehicle and one of three conditions is met: your normal faculties are impaired by alcohol or drugs, your blood-alcohol level is 0.08 or higher, or your breath-alcohol level is 0.08 or higher.

Florida Statute §316.193: The phrase “actual physical control” is critical. You do not have to be driving to be charged with DUI — sitting in the driver’s seat with the keys accessible can be enough. The State must prove you were either impaired to the extent your normal faculties were affected, or that your BAC was at or above 0.08. At The Brancato Law Firm, P.A., we challenge both the impairment evidence and the chemical test results.

“Normal faculties” under Florida law include your ability to see, hear, walk, talk, judge distances, make judgments, act in emergencies, and drive a vehicle. The State typically relies on field sobriety exercises, the officer’s observations, and chemical test results to prove impairment. Each of these has weaknesses we can exploit.

What Are the Penalties for DUI in Florida?

September 2026 update: A DUI arrest of a driver under 21 is frequently paired with an underage possession, open container, or fake ID charge, and since July 1, 2024, unlicensed alcohol sales at a commercial establishment are a felony. Our rewritten guide, What Are the Alcohol Offenses in Florida, and Can You Go to Jail for Them?, covers each of those charges, the penalties, and how Hillsborough County’s diversion program handles first-time cases.

Florida DUI charges carry penalties that increase sharply with each offense and with certain aggravating factors:

In addition to the criminal penalties outlined above, DUI charges in Florida trigger license suspension, increased insurance rates, and a permanent criminal record. The Brancato Law Firm, P.A. fights to prevent these consequences at every stage.

What Happens If You Refuse the Breathalyzer?

Florida’s implied consent law means that by driving on Florida roads, you have already consented to chemical testing if an officer has lawful cause to believe you are impaired. If you refuse, DHSMV automatically suspends your license — 1 year for a first refusal, 18 months for a second.

However, the consequences of refusal changed dramatically on October 1, 2025. Under Trenton’s Law (HB 687), a first-time refusal to submit to a breath or urine test is now a separate second-degree misdemeanor — carrying up to 60 days in jail and 6 months of probation — charged independently from the DUI itself. A second or subsequent refusal remains a first-degree misdemeanor punishable by up to 1 year in jail and a $1,000 fine. Furthermore, officers must now advise you that refusal can lead to criminal prosecution in addition to the administrative license suspension. Because the refusal charge is filed separately, you can be convicted of refusing the test even if the DUI charge is dismissed.

That said, refusing the breathalyzer does not mean the State wins on Florida DUI charges. In fact, many DUI cases without chemical test results are more defensible because the State must rely entirely on the officer’s observations and field sobriety exercises. At The Brancato Law Firm, P.A., we have won DUI cases where our clients refused testing — and we also defend the separate refusal charge aggressively.

Case Study — Not Guilty, DUI and Resisting Officer: We represented a client charged with DUI (refusal) and resisting arrest without violence. Using scene video, Rocky argued the client was not impaired and contended the officer was overly aggressive. The jury returned a verdict of Not Guilty on both counts. Past results do not guarantee future outcomes.

When Does DUI Become a Felony in Florida?

Warning: A third DUI within 10 years of a prior conviction is a third-degree felony carrying up to 5 years in prison. A fourth or subsequent DUI is always a felony — regardless of how much time has passed between offenses. DUI causing serious bodily injury is a third-degree felony, and DUI manslaughter is a second-degree felony punishable by up to 15 years. If you left the scene of a DUI crash that caused death, the charge becomes a first-degree felony with up to 30 years.

The jump from misdemeanor to felony DUI changes everything — prison instead of jail, a permanent felony record, and the loss of civil rights. If you are facing a felony DUI charge, the stakes could not be higher. At The Brancato Law Firm, P.A., we have the trial experience to fight these charges aggressively.

How We Fight DUI Charges in Tampa

Because I taught criminal procedure at the police academy, I know exactly how officers are trained to conduct DUI investigations — and I know where those procedures break down. Here is how we fight DUI charges in Florida at The Brancato Law Firm, P.A.:

• Challenge the traffic stop. If the officer had no lawful reason to stop you, everything that followed — including the breath test — may be suppressed.
• Challenge field sobriety exercises. These exercises are subjective and unreliable. Medical conditions, uneven surfaces, footwear, and nervousness all affect performance. We demonstrate that poor performance does not equal impairment.
• Challenge the breath or blood test. The operator must properly calibrate and maintain breathalyzer machines. The operator must follow specific procedures. If the operator skipped any step, the court may exclude the result.
• Challenge “actual physical control.” If you were sleeping in a parked car, sitting in the passenger seat, or not actually driving, we argue you were not in actual physical control of the vehicle.
• Use the video. Dash camera and body camera footage often tells a different story than the officer’s report. We review every second of available video.

Can DUI Charges Be Dropped or Reduced in Florida?

Yes — and prosecutors reduce Florida DUI charges more often than most people realize. The most common outcome we pursue is a reduction to reckless driving, which avoids a DUI conviction on your record. Here are the paths we take at The Brancato Law Firm, P.A.:

• Reckless driving reduction. If weaknesses exist in the State’s evidence, we negotiate a reduction to reckless driving — no DUI on your record, no mandatory license suspension, and significantly lower insurance impact.
• Motion to suppress. If the stop, the detention, or the chemical test violated your constitutional rights, we file a motion to suppress. If the evidence is thrown out, the case often collapses.
• DHSMV hearing challenges. DHSMV handles your license suspension separately from the criminal case. We fight the administrative suspension to keep you driving while the criminal case is pending.

Case Study — Marijuana DUI Reduced to Reckless Driving: We represented a client charged with DUI (marijuana) — the blunt was lit at the time of the stop and thick smoke was visible on video. Despite this evidence, Rocky negotiated a reduction to reckless driving, keeping the DUI conviction off our client’s record. Past results do not guarantee future outcomes.

Case Study — DUI Reduced to Reckless Driving: Officers stopped our client with open liquor bottles in the vehicle and admitted to consuming alcohol. However, Rocky demonstrated the client was not unlawfully impaired. Result: Reduced to reckless driving. Past results do not guarantee future outcomes.

What Should You Do After a DUI Arrest?

If you are facing DUI charges in Florida and have been booked at Orient Road Jail or Falkenburg Road Jail, take these steps immediately:

1. Request a DHSMV hearing within 10 days. After a DUI arrest, you have only 10 calendar days to request a formal review hearing with DHSMV to fight your license suspension. If you miss this deadline, the suspension takes effect automatically.
2. Call a DUI defense attorney before your first appearance. Your arraignment at the Hillsborough County Courthouse happens quickly. An attorney can argue for favorable bond conditions and begin building the defense.
3. Do not discuss the case. Do not post about the arrest on social media, do not discuss it with friends, and do not speak with law enforcement without an attorney present.
4. Preserve evidence. Dash camera footage, body camera video, and surveillance recordings can all support the defense — but they do not last forever.

Case Study — DUI License Suspension Overturned, CDL Reinstated: Our client lost both a standard driver’s license and a commercial driver’s license (CDL) after a DUI arrest. Rocky handled the DHSMV hearing personally and filed a petition for writ of certiorari in circuit court. The judge ruled the suspension improper and reinstated both licenses. Past results do not guarantee future outcomes.

Frequently Asked Questions About DUI in Florida

Is a first DUI a felony in Florida?

No — a first DUI is a misdemeanor carrying up to 6 months in jail. However, if the DUI caused serious bodily injury, it becomes a third-degree felony. If it caused a death, it becomes DUI manslaughter — a second-degree felony. The Brancato Law Firm, P.A. defends clients facing DUI charges at every level in Hillsborough, Pinellas, and Pasco Counties.

Can I lose my license for a DUI in Florida?

Yes. A first DUI conviction results in a 180-day to 1-year license suspension. A second conviction within 5 years results in a 5-year suspension. A third conviction results in a 10-year suspension. In addition, refusing the breathalyzer triggers an automatic administrative suspension. Tampa criminal defense attorney Rocky Brancato fights both the criminal charge and the license suspension simultaneously.

What is the BAC limit in Florida?

The legal limit is 0.08 for standard drivers and 0.02 for drivers under 21. A BAC of 0.15 or higher triggers enhanced penalties, including higher fines and longer potential jail time. However, a BAC reading is not always accurate — machine calibration issues, operator errors, and medical conditions can all produce false results.

More Questions About DUI Defense

Can DUI charges be dismissed in Florida?

Yes. If the officer conducted an unlawful traffic stop, improperly administered the breath test, or failed to follow required procedures, the court may suppress the evidence — and without evidence, the case is often dismissed. The Brancato Law Firm, P.A. examines every step of the investigation for constitutional violations.

Should I take the breathalyzer or refuse?

Since October 1, 2025, Trenton’s Law makes this decision even more consequential. A refusal now triggers both an automatic license suspension and a separate criminal charge — a second-degree misdemeanor for a first refusal, a first-degree misdemeanor for a second. However, submitting to the test gives the State direct evidence of your blood-alcohol level. There is no one-size-fits-all answer — the best strategy depends on the specific circumstances. If you have already been arrested, contact The Brancato Law Firm, P.A. immediately to discuss your options.

Hiring a DUI Defense Attorney

Why should I hire The Brancato Law Firm for a DUI charge?

Rocky Brancato is a member of the National College for DUI Defense (NCDD) and the DUI Defense Lawyers Association. As a former police academy instructor who taught officers criminal procedure and courtroom testimony, Rocky understands DUI investigations from the inside. With more than 150 jury trials to verdict, an AV Preeminent rating, and Super Lawyers recognition, The Brancato Law Firm, P.A. brings the experience that DUI cases demand.

How much does a DUI lawyer cost in Tampa?

Fees depend on whether the charge is a first offense or a felony DUI, the complexity of the evidence, and whether the case involves a DHSMV hearing. The Brancato Law Firm, P.A. offers free, confidential consultations. Call (813) 727-7159 to discuss your case.

You Are Reading This for a Reason — Let Us Help

If you are facing DUI charges in Florida, you already know the consequences are serious — license suspension, criminal record, insurance increases, and potential jail time. We have defended hundreds of DUI cases in Hillsborough County, and we know how to challenge the stop, the field sobriety exercises, and the chemical test results.

Every day you wait is a day the prosecution builds its case. The earlier Tampa criminal defense attorney Rocky Brancato gets involved, the more options you have — especially the critical 10-day DHSMV deadline.

Call The Brancato Law Firm, P.A. today at (813) 727-7159 for a free, confidential consultation. We are available 24/7 and serve clients throughout Hillsborough, Pinellas, and Pasco Counties.

For more about how we defend DUI charges, visit our DUI Defense practice page. You can also read our guide on What Is Reckless Driving in Florida? — we resolve many DUI cases through reduction to reckless driving, and understanding both charges is important.

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice serving clients exclusively in Hillsborough, Pinellas, and Pasco Counties. We are not affiliated with any other Brancato-named law firms.

This page is for informational purposes only and does not constitute legal advice. Each case is unique, and outcomes depend on the individual facts and circumstances involved. Past results do not guarantee future outcomes.

Updated 5/31/2026

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. In more than 25 years of Hillsborough County practice I’ve defended these cases on both sides of the causeway, and the thing clients almost never know when they call is that the charge they think of as “a boating ticket” is scored against them for the rest of their driving life. Our attorneys treat a BUI exactly as we would treat a DUI, because the statute books do.

What Does Florida’s BUI Law Actually Require?

Three things: a vessel, operation of it, and impairment. Under section 327.35, Florida Statutes, a person commits BUI who is operating a vessel in Florida and either is under the influence of alcohol, a chemical substance, or a controlled substance to the extent that their normal faculties are impaired, or has a blood-alcohol level of 0.08 or more grams per 100 milliliters of blood, or a breath-alcohol level of 0.08 or more grams per 210 liters of breath.

Two of those three elements are defined far more broadly than people expect. Section 327.02, Florida Statutes defines “operate” to mean being in charge of, in command of, or in actual physical control of a vessel on the waters of this state — or exercising control over, or having responsibility for, the vessel’s navigation or safety while it is underway, or steering a vessel being towed. So the myth that you are safe if the engine is off, or if a sober friend is technically at the helm, is exactly that: a myth. Actual physical control is enough.

The same section defines “vessel” as synonymous with a boat, including every description of watercraft, barge, and airboat other than a seaplane on the water, “used or capable of being used as a means of transportation on water.” Floating structures — floating homes, floating restaurants, and similar permanently moored structures — are expressly excluded.

That last phrase is where the real litigation happens, and Tampa Bay’s own appellate court has told us so. In State v. Davis, No. 2D12-1409 (Fla. 2d DCA Feb. 27, 2013) — a Punta Gorda case in which an officer watched the defendant shift a twenty-five-foot boat between forward and reverse twenty-five yards off a waterfront bar — the Second District held that the State does not have to prove the boat was subject to a license tax to prove BUI. What matters, the court explained, is “the vessel’s use for transportation on water,” not its registration status. (Read the opinion.) The practical read for a defense lawyer is the flip side of the holding: if the thing your client was aboard is not used or capable of being used to transport people on water, it is not a vessel, and there is no BUI.

How Is a BUI Different From a DUI in Florida?

Side by side, the two statutes are close cousins with a few consequential differences:

The cross-counting is the part that ambushes people, and it runs in both directions by express statutory text. Section 327.35 provides that a conviction for violating section 316.193 counts as a previous conviction under the BUI statute; section 316.193 in turn provides that “any conviction for a violation of s. 327.35” is also considered a previous conviction under the DUI statute. A client who took a quick plea on a BUI five years ago because “it’s not a driving charge” can walk into a first-ever traffic stop and find themselves charged as a second offender, with the mandatory minimums that come with it.

The absence of a license suspension cuts the other way, and honestly: it removes the single biggest source of urgency in an ordinary DUI. There is no ten-day clock. That is genuinely good news, and it is also why BUI clients so often wait too long to hire counsel — nothing forces the issue until the case is already deep in the discovery calendar.

What Are the Penalties for a BUI in Florida?

They escalate on the same shape of ladder as a DUI, and the mandatory jail arrives on the second conviction:

Two enhancements sit on top of that ladder. A blood- or breath-alcohol level of 0.15 or higher, or having a passenger under 18 aboard, raises the fine range to $1,000–$2,000 for a first conviction, $2,000–$4,000 for a second, and at least $4,000 for a third or subsequent — and raises the jail exposure to nine months on a first and twelve on a second. For the 0.15 enhancement, only the instant offense has to qualify.

And every BUI conviction, regardless of level, carries mandatory monthly reporting probation and a court-specified substance abuse course, with evaluation and treatment at the defendant’s expense as a condition of that probation. When at least 48 hours of a mandatory sentence must be served consecutively, the statute says so — which is the answer to the common question of whether the ten days can be split into weekends.

When Does a BUI Become a Felony in Florida?

The moment somebody gets hurt. Section 327.35(3) grades BUI by consequence, not by intent:

• Damage to the property or person of another — first-degree misdemeanor.
• Serious bodily injury to another, as defined in section 327.353 — third-degree felony.
• Death of any human being, or of an unborn child — BUI manslaughter, a second-degree felony.
• BUI manslaughter with aggravation — a first-degree felony if the operator knew or should have known an accident occurred and failed to give information and render aid as required by section 327.30, or if the operator has a prior BUI manslaughter, DUI manslaughter, vehicular homicide, or vessel homicide conviction.

And since Lucy’s Law took effect on July 1, 2025, a BUI manslaughter conviction carries a mandatory minimum term of four years in prison — the same floor the Legislature had already imposed for DUI manslaughter. That is a sentence a judge cannot go below no matter how sympathetic the defendant or how cooperative the plea. Our full breakdown of the 2025 changes is in our article on Lucy’s Law and the new BUI and boating felony rules; the parallel to the road is covered in DUI manslaughter in Florida.

Prosecutors also routinely stack a separate charge under section 327.33, Florida Statutes, which now grades reckless operation of a vessel — willful or wanton disregard for the safety of persons or property — as a second-degree misdemeanor with no accident, a first-degree misdemeanor if the accident damages property or injures a person, and a third-degree felony if it causes serious bodily injury. Careless operation, by contrast, is a noncriminal violation. The line between “careless” and “reckless” is doing a great deal of work in these cases, and it is worth fighting over.

Can Police Stop My Boat Without a Reason?

Yes — and this is the single biggest legal difference between the water and the road. Section 327.70, Florida Statutes authorizes Florida Fish and Wildlife Conservation Commission officers, sheriff’s deputies, municipal police, and other certified officers to “cause any inspections to be made of all vessels” under chapters 327 and 328. And in State v. Casal, 410 So. 2d 152 (Fla. 1982) — a case in which the Marine Patrol stopped a motorboat off the Florida coast to check permits and registration — the Florida Supreme Court held that random stops of motorboats for the limited purpose of checking fishing permits, registration certificates, and safety equipment are reasonable under the Fourth Amendment. The court’s reasoning was practical: “Unlike an automobile, a boat at sea can travel in any direction,” and it “would be impossible to establish a checkpoint on the water since boats cannot come to a complete stop and line up behind each other on the water as cars can on roads.” (Read the opinion.)

So the answer to “he had no reason to stop me” is usually that he did not need one. But Casal is only half a holding, and the second half is where cases are won. The same court held that “after the initial stopping and boarding a vessel the marine patrol must have probable cause before conducting any further search or inspection” — and it found that the specific facts before it (no registration certificate, and an icebox with no ice on a boat supposedly bound for the Bahamas) were “suspicious circumstances but did not constitute probable cause.”

That two-step structure is the framework for every BUI suppression motion our attorneys file. The regulatory stop is nearly unassailable. What follows it is not: the expansion into an impairment investigation, the order to submit to seated exercises, the search of the cabin and the cooler, and ultimately the arrest each need their own justification, and the officer’s report frequently supplies less of it than the officer believes.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

What Happens If You Refuse the Breath Test on the Water?

Something quite different from what happens in a car — and the difference has narrowed sharply in the last year. Under section 327.352, Florida Statutes, anyone who operates a vessel in Florida is deemed to have consented to a breath test for alcohol, or a urine test for chemical or controlled substances, incidental to a lawful arrest where the officer has reasonable cause to believe the person was operating under the influence. A blood test is reserved for circumstances in which breath or urine testing is impractical or impossible. And the statute makes the refusal itself admissible: refusal to submit to a lawful chemical or physical breath test “is admissible into evidence in any criminal proceeding.”

The penalty structure then splits in two:

Read that third row twice, because it is the trap. Section 327.359, Florida Statutes makes a refusal on the water a criminal offense not only for the boater with a prior boating refusal, but for the boater whose driver license was previously suspended for refusing a breath, urine, or blood test in a car case. A driver who refused years ago on Dale Mabry can commit a first-degree misdemeanor by refusing for the first time ever on Tampa Bay. That provision arrived with Trenton’s Law, which we cover in Trenton’s Law and Florida’s enhanced DUI and BUI penalties, alongside the parallel change to car refusals discussed in breathalyzer refusal in Florida.

Note also what section 327.35215 requires of the State: certified statements from law enforcement documenting probable cause for the arrest and the refusal, plus sworn confirmation that the person was advised of the penalties and of the hearing procedure. Those are elements, not formalities, and they are not always in the file.

How Do Our Attorneys Defend BUI Charges?

By attacking the two elements that the marine environment makes weakest.

The impairment evidence. Roadside field sobriety exercises were designed, validated, and normed for a person standing on flat, stationary pavement. Almost none of that survives a boat deck. A person who has spent six hours in the sun, in wind, on a rocking hull, dehydrated, sunburned, and hearing-fatigued from an outboard motor will perform badly on balance and divided-attention tasks while stone sober — and “sea legs” persist for a meaningful period after stepping onto a dock. Officers know this, which is why the water versions of these exercises are seated tasks with far thinner scientific pedigree than the walk-and-turn. Cross-examination on what the exercise actually measures, and on whether the officer administered and scored it as trained, is often the whole case.

The vessel and operation elements. Davis tells us the State must prove a vessel used or capable of being used to transport people on water. Where a client was aboard a floating structure, a disabled hull, or something the statute excludes, that element fails. And where the person charged was not in charge, in command, or in actual physical control — a passenger, a person asleep in a berth, a person whose sober companion had the helm — the State’s proof on operation is frequently assumption dressed up as observation.

Beyond that, the ordinary chemistry defenses all apply: the breath test on a BUI is administered at a dock or a jail, often well after the last drink and well after the stop, which raises both the rising-BAC problem and a foundation problem about the twenty-minute observation period. Body-camera coverage on the water is far spottier than on the road; where the video does not exist, the report is the only account, and reports are testable. And because there is no administrative suspension to litigate, the entire fight lives in the criminal case, where the burden is beyond a reasonable doubt.

What Should You Do After a BUI Arrest?

Treat it as the DUI it will one day be counted as. Before your first court date:

1. Say nothing about how much you drank, to anyone but your lawyer. The single most damaging sentence in most of these files is the client’s own estimate.
2. Write down the day while you remember it — when you launched, what you ate, how long you were in the sun, who was at the helm, what the water was doing, and what the officer said and did in what order.
3. Preserve the evidence that disappears. Photos and video from everyone aboard, the marina’s cameras, receipts that fix a timeline, and the names of witnesses who will scatter within the week.
4. Get counsel before the arraignment. Not because a clock is running, but because the first plea offer in a BUI case is usually built on the assumption that no one is going to test the officer’s report.
5. Count your priors accurately, including DUIs. Whether your prior is a car case or a boat case, it counts. The difference between a second and a third conviction is the difference between mandatory days and a felony.

Frequently Asked Questions About BUI in Florida

Can you get a BUI on a kayak, canoe, paddleboard, or jet ski?

A jet ski is unambiguously a vessel, and BUI applies. Human-powered craft are the harder question: the statutory definition reaches “every description of watercraft” used or capable of being used as a means of transportation on water, which on its face includes a kayak or canoe, and Florida officers do charge these cases. Paddleboards raise a genuinely contestable definitional argument. If you were charged while on a paddleboard, kayak, or canoe, the vessel element is worth litigating rather than conceding.

Does a BUI suspend my driver license in Florida?

No. A BUI conviction under section 327.35 carries no driver license suspension or revocation, and there is no administrative suspension at arrest and no ten-day formal review hearing to demand. Be careful, though: refusing the test on the water can produce criminal exposure under section 327.359 if your license was previously suspended for a refusal in a car case.

Do prior DUI convictions count toward a BUI enhancement?

Yes — and the reverse is equally true. Section 327.35 counts a prior conviction under section 316.193 as a previous BUI conviction, and section 316.193 counts a prior BUI as a previous DUI conviction. Out-of-state alcohol- and drug-related driving convictions can also count. This is the reason we pull a complete criminal and driving history in every one of these cases before discussing any resolution.

Can I be charged with BUI if the boat was anchored or the engine was off?

Possibly, yes. “Operate” is defined to include being in charge of, in command of, or in actual physical control of a vessel — the same actual-physical-control concept that lets the State charge DUI for a parked car. Whether the State can prove it on your facts is a different question, and one worth fighting. Whether the craft counts as a vessel at all is the other.

What is BUI manslaughter, and is there a mandatory prison sentence?

BUI manslaughter is a BUI that causes or contributes to causing the death of a human being or an unborn child. It is a second-degree felony, elevated to a first-degree felony if the operator knew or should have known an accident occurred and failed to give information and render aid, or has a qualifying prior. Since July 1, 2025 it carries a mandatory minimum of four years in prison.

Is a BUI checkpoint on the water legal?

The Florida Supreme Court’s reasoning in Casal was that a fixed checkpoint is physically impossible on open water, which is precisely why random regulatory stops of vessels were held reasonable. In practice, what you encounter is a safety and registration inspection that can lawfully begin without any suspicion at all. What officers do after that first contact is where the Fourth Amendment still has teeth.

Will a BUI show up on a background check?

Yes. A BUI is a criminal charge and a criminal conviction, and it appears in the same places a DUI does. Structuring a disposition with that consequence in view — a withhold of adjudication, a reduction, a diversion where available — is often more valuable to a client than shaving days off a sentence.

If you or a family member has been arrested for boating under the influence anywhere on Tampa Bay, the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — will look at the stop, the exercises, the test, and the vessel itself before anyone talks about a plea. Call (813) 727-7159. The charge is treated like a DUI by the statute books; it deserves to be defended like one.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I’m a member of the National College for DUI Defense and a former police academy instructor who taught the very stop and arrest procedures these cases turn on — and today our attorneys defend refusal charges and the DUI cases that come with them across Hillsborough, Pinellas, and Pasco Counties.

What Happens the Moment You Refuse the Breath Test?

Three separate consequences begin the moment you say no. First, under Florida’s implied consent law, section 316.1932, Florida Statutes, your refusal is admissible against you in the DUI case itself — the prosecutor will argue you refused because you knew you would fail. Second, the Department of Highway Safety and Motor Vehicles suspends your license administratively: one year for a first refusal, 18 months for a second or subsequent one. Third — and this is the change that still surprises drivers — the refusal is now a separate crime of its own, even if it is your first.

Implied consent is the trade built into every Florida driver license: by driving on Florida roads, you are deemed to have agreed to submit to an approved breath or urine test after a lawful DUI arrest. Refusing does not undo the trade — it triggers the penalty side of it.

Is a First Refusal Really a Crime Now?

Yes. Before October 1, 2025, a first refusal carried only the administrative suspension; the crime of refusal applied only to drivers whose license had already been suspended for refusing once before. Trenton’s Law changed that. Under the current version of section 316.1939, Florida Statutes, a first refusal is a second-degree misdemeanor, and a second or subsequent refusal is a first-degree misdemeanor — in addition to the DUI charge and the suspension.

One detail with real teeth: the statute counts a prior refusal from the water as well as the road. A driver who was previously fined under section 327.35215 for refusing a breath test after a boating under the influence stop faces the first-degree misdemeanor version on their first roadside refusal — the two systems share a memory. Our article on BUI in Florida covers the marine side of implied consent.

What Must the State Prove to Convict You of Refusal?

Section 316.1939 is unusually explicit about its elements, and every one of them is a checkpoint our attorneys test. To convict, the State must prove each of the following:

1. Probable cause. The arresting officer had probable cause to believe you were driving or in actual physical control of a vehicle while impaired.
2. A lawful arrest. You were lawfully arrested for DUI under section 316.193 before the test was requested (unless the request fell under a statutory exception).
3. The suspension warning. You were told that refusing would cost your license for one year — or 18 months if you had refused before.
4. The crime warning. You were told that refusal itself is a crime — the statute now requires the officer to spell out the misdemeanor consequences.
5. A knowing refusal after the warnings. Only after being properly informed did you refuse the test.

Each element is a place these cases fall apart. If the stop was bad, the arrest was not lawful — element two fails, and the analysis in our article on how long a traffic stop can last in Florida frequently supplies the ammunition. If the implied consent warnings were incomplete, garbled, or delivered in a language the driver could not understand, elements three and four are in play. Body-camera audio answers most of these questions — which is why we pull it in every refusal case before anything is overwritten.

Can a Refusal Be Suppressed? What Did Repple Change?

Suppression is still very much alive — but one popular argument is now dead, and drivers should know which is which. In State v. Repple, 428 So. 3d 59 (Fla. Dec. 30, 2025), a Maitland officer lawfully arrested a driver for DUI inside the city, then drove him to a testing facility outside the city limits and requested the breath test there. The defense argued the officer had no authority to request the test outside his own jurisdiction. The Florida Supreme Court disagreed: the implied consent law necessarily implies the authority to complete the testing process that a lawful in-jurisdiction arrest begins, even at a facility outside the municipality. (Read the opinion.)

The Sixth District applied that holding directly to a refusal within months. In State v. Hart, No. 6D24-2164 (Fla. 6th DCA May 22, 2026), the trial court had suppressed a driver’s refusal because the breath test was requested outside the arresting officer’s municipality; the appellate court reversed, citing Repple. (Read the opinion.)

What survives Repple is everything that matters more: an unlawful stop, an arrest without probable cause, defective implied consent warnings, and disputes over whether what you did was actually a “refusal” at all. A driver who tried to blow and could not produce an adequate sample, or who asked clarifying questions and was marked refused, has a factual fight worth having — juries understand the difference between defiance and confusion.

What Actually Counts as a “Refusal”?

Less than most drivers assume — and the label the officer writes on the form is not the last word. The statute requires a refusal after proper warnings, and in practice the word “refusal” gets attached to a wide range of conduct: a driver who says nothing at all, a driver who asks to call a lawyer first, a driver who agrees to blow and then cannot produce a sample the machine will accept, and a driver who blows once and declines the second required sample. Whether each of those is a knowing refusal is a fact question, and fact questions are where defense work lives.

The pattern our attorneys see most often in Hillsborough County cases is the “incomplete sample” refusal: the machine logs a volume error, the operator announces a refusal, and the paperwork hardens around that word. Medical conditions — asthma, COPD, panic — can make an adequate sample genuinely difficult, and breath-test operators are trained to distinguish can’t from won’t. When the video shows a driver visibly trying, the refusal charge is triable, and the administrative suspension is contestable on the same ground. The same is true of the confused driver who was warned in rapid-fire legalese: the statute demands that the consequences be communicated, not merely recited.

What About Your License? The 10-Day Clock

The administrative suspension is separate from the criminal case, and it moves much faster. After a refusal, the officer typically takes your license on the spot and issues a citation that acts as a 10-day temporary permit. You have 10 days to demand a formal review hearing with the DHSMV; miss the window and the full suspension takes hold automatically — one year for a first refusal, 18 months for a repeat.

The formal review hearing is more than a chance to save your license. It is the earliest opportunity to put the officer’s account under oath, months before the criminal case reaches a courtroom. Our attorneys use these hearings to pin down the timeline, the claimed driving pattern, and the exact words of the implied consent warning — testimony the officer is then stuck with at the suppression hearing and at trial. Whatever happens administratively does not decide the criminal case: the statute says so expressly.

For more about our defense strategies, visit our Tampa DUI defense page.

Should You Refuse the Breathalyzer in Florida?

There is no one-size answer anymore, and anyone who gives you one is guessing. Before Trenton’s Law, many defense lawyers quietly advised that a first-time driver had little to lose by refusing: the State lost its number, and the only price was a suspension. That calculus is gone. Today refusal buys the State a second criminal charge, an aggravating talking point at the DUI trial, and a full year without your license — while still not guaranteeing the State lacks impairment evidence, because officers routinely document driving pattern, field exercises, and video.

What we can say from experience: the decision is made in a stressful moment, usually without counsel, and our job starts wherever yours ended. A refusal case is defensible. A test-failure case is defensible. The worst position is doing nothing with the 10-day window.

How Does a Refusal Play at the DUI Trial?

The prosecutor will use it — section 316.1932 makes the refusal admissible, and the standard argument is consciousness of guilt: an innocent driver would have blown. But the argument cuts only as deep as the surrounding facts let it. A refusal case, by definition, is a case with no number — no breath reading, no bright-line proof of impairment — which means the State’s case rests entirely on the officer’s observations, the driving pattern, the field exercises, and the video. Every weakness in those becomes the answer to the refusal argument: a driver who walks the line cleanly on camera and then declines to trust the machine does not look conscious of guilt; he looks skeptical of a process he did not understand.

That is why our attorneys treat the refusal and the DUI as one integrated defense rather than two cases. The same body-camera footage that defeats the “impairment” narrative also reframes the refusal, and the same warning defects that undermine the criminal refusal count knock out the administrative suspension. In the 13th Judicial Circuit, where breath testing runs through the sheriff’s central breath testing facility, the maintenance and inspection records of the specific instrument are discoverable — and a machine with a history of volume errors is powerful context for an “incomplete sample” refusal.

September 2026 update — how far the prosecutor can go. The Fourth District has just drawn the line. In Paul v. State, No. 4D2025-0899 (Fla. 4th DCA Sept. 2, 2026), the prosecutor told the jury in rebuttal: “If he wasn’t impaired, there is one sure way he could have shown us, isn’t there? He could have done the roadside exercises, but he refused. He could have definitely given us a breath sample, but he refused.” The defense objected that the comment shifted the burden of proof. The court affirmed the DUI conviction, holding that because the refusals were properly admitted under section 316.1932, “the state’s reference to those refusals was a proper comment on both the evidence and the defendant’s consciousness of guilt,” and that “impairment and consciousness of guilt may be inferred from the defendant’s refusal to submit to a breath-alcohol test.” The prosecutor may even argue the more specific point that the driver refused because he knew his breath-alcohol level would be over the limit. (Read the opinion.)

Two things in Paul still work for the defense. First, the court said the State “should have been more careful to avoid using the words ‘he could have shown us,’” and saved the comment only because the prosecutor immediately pivoted to consciousness of guilt and had “repeatedly emphasized it had the burden to prove the defendant guilty beyond a reasonable doubt.” A prosecutor who lingers on what the driver “could have shown” without that pivot, or who never restates the burden, is in different territory. Second, the court applied harmless-error review under State v. DiGuilio, which puts the burden on the State to prove beyond a reasonable doubt that the comment did not contribute to the verdict — a standard available only because defense counsel objected. The lesson for trial practice is unchanged: object to every burden-shifting turn of phrase, and make the State earn the consciousness-of-guilt argument with its own evidence rather than with what the driver declined to do.

Real Results in Breathalyzer Refusal Cases

Case Study — Not Guilty on DUI Refusal and Resisting Arrest: We represented a client charged with DUI (refusal) and resisting arrest without violence. Rocky presented scene video to the jury demonstrating the client showed no signs of impairment. Rocky further argued the arresting officer was overly aggressive and the client did not resist. The jury returned a verdict of Not Guilty on both counts. Past results do not guarantee future outcomes.

What Should You Do in the First 10 Days After a Refusal Arrest?

Use the window. Demand the formal review hearing — through counsel — before day 10, both to fight the suspension and to lock in the officer’s testimony early. Ask your attorney about eligibility for a business-purposes-only permit so you can keep driving to work while the case is fought.

Preserve everything: the citation, the names of passengers or witnesses, and your own written timeline of the stop while it is fresh — what was said, in what order, and exactly how the “refusal” happened. Body-camera and dash-camera video make or break the warning elements, and retention schedules are short; a preservation demand in week one costs nothing and can win the case in month six. And do not discuss the stop with anyone but your lawyer — in a case where the crime is a conversation, your words are the evidence.

Frequently Asked Questions About Breathalyzer Refusal in Florida

Is refusing a breathalyzer a crime in Florida?

Yes. Since October 1, 2025, a first refusal of a lawfully requested breath or urine test is a second-degree misdemeanor, and a second or subsequent refusal is a first-degree misdemeanor under section 316.1939. That is in addition to the administrative license suspension and the DUI charge itself. The attorneys at The Brancato Law Firm defend all three fronts together, because evidence that weakens one usually weakens the others.

Can I get my license back after a refusal suspension?

Often, at least for essential driving. After the formal review process, many drivers qualify for a business-purposes-only permit covering work, school, church, and medical needs. Eligibility depends on your history — repeat refusals face longer hard suspensions — so bring your full driving record to the first consultation.

What if the officer never read me the implied consent warnings?

Then the State has an elements problem. Section 316.1939 requires proof that you were told both the suspension consequences and that refusal is itself a crime, before you refused. Incomplete or garbled warnings defeat the refusal charge and give our attorneys leverage in the DUI case as well; body-camera audio usually settles what was actually said.

Does the new law apply to a refusal from before October 2025?

No — Trenton’s Law governs refusals that occur after its effective date of October 1, 2025. But an older refusal still counts against you in other ways: it supports the 18-month suspension and elevates a new refusal to a first-degree misdemeanor.

Can my old boating refusal make a roadside refusal worse?

Yes. The statute expressly elevates a refusal to a first-degree misdemeanor for a driver previously fined under section 327.35215, the boating-under-the-influence refusal provision. Florida treats the road and the water as one record for refusal history.

Will the jury hear that I refused?

In most cases, yes — section 316.1932 makes refusal admissible in the criminal proceeding, and prosecutors argue it shows consciousness of guilt. The defense answer is context: confusion, medical issues, distrust of the machine, or a botched warning. The Brancato Law Firm, P.A. has won refusal trials by showing the jury the video and letting them see the difference between a guilty conscience and a bad arrest.

If you refused a breath test anywhere in Tampa Bay, the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — need to hear from you inside the 10-day window. Call (813) 727-7159 today: the formal review deadline does not wait for the criminal case, and the earliest hearing is often where the whole defense is built.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

What Is Trenton’s Law?

On October 1, 2025, a sweeping new Florida law known as Trenton’s Law took effect, fundamentally changing how DUI and BUI offenses are prosecuted and punished in Florida. This legislation represents one of the most significant expansions of DUI penalties in recent Florida history.

Specifically, Trenton’s Law accomplishes four major objectives: it criminalizes refusal to submit to chemical testing, enhances penalties for repeat offenders, increases sentencing for DUI and BUI manslaughter, and updates Florida’s Criminal Punishment Code to impose higher sentencing points for impaired driving offenses. Consequently, anyone arrested for DUI or BUI after October 1, 2025 faces substantially more severe consequences than under prior law.

Breath Test Refusal Is Now a Crime

One of the most significant changes under Trenton’s Law is the criminalization of breath and urine test refusal. Prior to October 1, 2025, refusing a lawful request for chemical testing resulted in an administrative license suspension but was not itself a criminal offense.

Under the new law, refusing to submit to testing now carries the following criminal penalties:

Moreover, officers must now clearly advise drivers that refusing a lawful test is not only grounds for license suspension but also a crime that can be prosecuted. This expanded implied consent warning ensures defendants cannot claim ignorance of the criminal consequences.

Enhanced DUI and BUI Manslaughter Penalties

Trenton’s Law dramatically increases penalties for DUI manslaughter, BUI manslaughter, vehicular homicide, and vessel homicide—particularly for defendants with prior convictions. Under the new law, these offenses are now elevated to first-degree felonies when the defendant has a prior conviction for any of these offenses.

Prior Convictions That Trigger Enhancement

A defendant’s current charge will be elevated to a first-degree felony if they have any prior conviction for:

• DUI manslaughter (Florida Statute § 316.193(3)(c)3)
• BUI manslaughter (Florida Statute § 327.35(3)(c)3)
• Vehicular homicide (Florida Statute § 782.071)
• Vessel homicide (Florida Statute § 782.072)

Trenton’s Law: Before and After Comparison

Offense Severity Ranking Changes

Trenton’s Law also updates Florida’s Offense Severity Ranking Chart under the Criminal Punishment Code. DUI, BUI, vehicular homicide, and vessel homicide offenses have been moved higher on the chart, resulting in significantly more sentencing points.

In Florida’s sentencing system, higher offense severity rankings translate directly into longer mandatory minimum sentences and increased prison exposure. Therefore, even defendants without prior convictions will face harsher guideline sentences for DUI and BUI offenses committed after October 1, 2025.

Boating Under the Influence (BUI) Enhancements

Trenton’s Law applies identical enhancements to boating under the influence offenses. For Tampa Bay area boaters—including those in Hillsborough, Pinellas, and Pasco counties—this means that BUI arrests now carry the same serious consequences as DUI arrests.

Specifically, the law provides that:

• Refusing breath or urine testing during a BUI investigation is now a criminal offense
• BUI manslaughter with a prior conviction for DUI manslaughter, BUI manslaughter, vehicular homicide, or vessel homicide is a first-degree felony
• Vessel homicide carries enhanced sentencing points under the Criminal Punishment Code

What Trenton’s Law Means for Tampa Bay Drivers and Boaters

For drivers and boaters across Tampa Bay—including Hillsborough, Pinellas, and Pasco counties—Trenton’s Law significantly raises the stakes in DUI and BUI cases. The changes affect everyone from first-time offenders to those with prior records.

A refusal to blow is no longer just an administrative suspension—it can now lead to a permanent criminal record. Likewise, repeat DUI or BUI offenders face life-altering felony enhancements that can result in decades of prison time.

If you or a loved one is charged under this new law, it is crucial to work with an experienced defense attorney who understands both the criminal trial process and the nuances of Florida’s sentencing guidelines.

Frequently Asked Questions: Trenton’s Law

What is Trenton’s Law in Florida?

Trenton’s Law is a 2025 Florida statute that significantly increases penalties for DUI and BUI offenses. The law criminalizes breath test refusal, enhances penalties for repeat offenders, elevates DUI and BUI manslaughter to first-degree felonies for defendants with prior convictions, and increases sentencing points under Florida’s Criminal Punishment Code. It takes effect October 1, 2025.

Does refusing a breath test now carry criminal charges in Florida?

Yes. Under Trenton’s Law, refusing to submit to a lawful breath or urine test is now a criminal offense. A first refusal is a second-degree misdemeanor punishable by up to 60 days in jail and a $500 fine. A second or subsequent refusal is a first-degree misdemeanor punishable by up to one year in jail and a $1,000 fine.

What happens if someone with a prior DUI manslaughter conviction causes another fatal crash?

Under Trenton’s Law, they can now be charged with a first-degree felony, which carries a maximum penalty of 30 years in state prison. This is a dramatic increase from the previous second-degree felony classification, which carried a maximum of 15 years.

Does Trenton’s Law apply to boating under the influence (BUI)?

Yes. The law applies identical enhancements to BUI offenses. Refusing testing during a BUI investigation is now a criminal offense, and BUI manslaughter with a prior conviction is now a first-degree felony. Vessel homicide also receives enhanced sentencing points.

When does Trenton’s Law take effect?

Trenton’s Law takes effect on October 1, 2025. All DUI and BUI arrests occurring on or after this date will be subject to the new enhanced penalties, including criminal charges for refusal.

Should I refuse the breath test under the new law?

This is a complex legal question that depends on your specific circumstances. Under Trenton’s Law, refusal now carries criminal penalties in addition to license suspension—but providing a breath sample can also provide evidence for the prosecution. An experienced DUI attorney can help you understand the strategic considerations based on your individual situation.

What prior convictions trigger the first-degree felony enhancement?

The first-degree felony enhancement applies if the defendant has any prior conviction for DUI manslaughter, BUI manslaughter, vehicular homicide, or vessel homicide. Any one of these prior convictions will elevate a new DUI manslaughter, BUI manslaughter, vehicular homicide, or vessel homicide charge to a first-degree felony.

How can a Tampa DUI attorney help with charges under Trenton’s Law?

An experienced Tampa DUI attorney can challenge the legality of the traffic stop, question the administration of field sobriety tests, challenge breath test results, file motions to suppress evidence, negotiate with prosecutors for reduced charges, and advocate for alternative sentencing. Given the enhanced penalties under Trenton’s Law, aggressive defense from the earliest stages is critical.

Related:

• Tampa DUI Lawyer – Full DUI defense services
• Tampa CDL DUI Suspension Attorney – Commercial license defense
• Retrograde Extrapolation: Challenging BAC Evidence in Florida DUI Cases
• Tampa Boating Law 2025 Lucy’s Law