I’m Tampa criminal defense attorney Rocky Brancato. With more than 25 years defending criminal cases in Hillsborough County, an AV Preeminent rating from Martindale-Hubbell, Super Lawyers recognition, membership in the National College for DUI Defense, and more than 150 jury trials to verdict, I have defended hundreds of DUI and refusal cases — including taking refusal cases to jury trial and winning Not Guilty verdicts.

How Does Florida Define Breathalyzer Refusal?

Florida Statute §316.1939 creates a standalone criminal offense for refusing to submit to a chemical or physical test of breath or urine after a lawful DUI arrest. Before Trenton’s Law took effect on October 1, 2025, the criminal refusal charge applied only to people with a prior refusal or a prior license suspension for refusal. After October 1, 2025, every refusal — including a first refusal by someone with no prior record — carries criminal penalties.

The statute requires five specific conditions before the refusal becomes criminal: (1) the officer had probable cause to believe the person was driving under the influence, (2) the officer placed the person under lawful arrest for DUI under §316.193, (3) the officer informed the person that refusing will result in a 1-year license suspension (or 18 months for a second refusal), (4) the officer informed the person that the refusal itself is a criminal misdemeanor, and (5) after receiving all warnings, the person still refused. If any of these five conditions fails, the criminal charge under §316.1939 cannot stand.

Florida Statute §316.1939 (as amended by Trenton’s Law): A first refusal to submit to a breath or urine test is a second-degree misdemeanor carrying up to 60 days in jail and a $500 fine. A second or subsequent refusal is a first-degree misdemeanor carrying up to 1 year in jail and a $1,000 fine. These criminal penalties are separate from and in addition to the administrative license suspension and the underlying DUI charge. At The Brancato Law Firm, P.A., we defend breathalyzer refusal charges throughout the 13th Judicial Circuit — often alongside the DUI itself.

What Are the Penalties for Refusing a Breathalyzer?

Breathalyzer refusal triggers both criminal and administrative consequences simultaneously:

The administrative suspension begins immediately — the officer confiscates the physical license and issues a temporary permit valid for 10 days. After that, the suspension takes effect unless the defendant or defense attorney requests a formal review hearing within 10 days of the arrest. Furthermore, unlike a DUI conviction suspension, a refusal suspension does not qualify for a hardship license during the first 90 days.

Warning — The Refusal Charge Is Separate from the DUI: Many people assume that refusing the breathalyzer simply adds a license suspension to the DUI case. After Trenton’s Law, that is no longer true. The refusal itself creates an independent criminal charge with its own penalties. A person arrested for DUI who refuses the breathalyzer now faces at minimum two criminal charges: the DUI under §316.193 and the refusal under §316.1939. If the person also had a suspended license, officers may add DWLS under §322.34 — resulting in three separate criminal charges from a single traffic stop. At The Brancato Law Firm, P.A., we build independent defenses for each charge and fight to prevent conviction stacking.

What Is Trenton’s Law and How Did It Change Refusal Penalties?

Trenton’s Law (HB 687) took effect on October 1, 2025, and fundamentally changed the landscape of breathalyzer refusal in Florida. Before this law, §316.1939 only applied to people who had already refused a test once before or who had a prior suspension for refusal. A first-time refusal carried only administrative consequences — a license suspension — but no separate criminal charge.

Trenton’s Law eliminated that distinction. Now every refusal — including a first refusal by someone with no prior record — constitutes a criminal misdemeanor. The law also restructured the penalty tiers: a first refusal is a second-degree misdemeanor, and a second or subsequent refusal is a first-degree misdemeanor. In addition, officers must now explicitly inform the person that the refusal is a criminal offense before requesting the test. If the officer fails to deliver this warning, the criminal refusal charge may fail.

The law also applies to BUI (boating under the influence) refusals. Under §327.35215, a person who refuses a breath or urine test during a BUI investigation faces the same criminal penalties. Furthermore, a prior BUI refusal counts as a “prior refusal” for purposes of elevating a subsequent DUI refusal to a first-degree misdemeanor — and vice versa.

How Do We Defend Breathalyzer Refusal Charges?

At The Brancato Law Firm, P.A., we defend refusal charges by targeting each of the five statutory requirements that must exist before a refusal becomes criminal:

• Challenge probable cause. The officer must have had probable cause for DUI. If the traffic stop lacked reasonable suspicion or the officer’s observations did not support probable cause, the refusal charge collapses along with the DUI. We obtain dash camera and body camera footage to evaluate the officer’s stated reasons.
• Challenge the lawfulness of the arrest. Section 316.1939 requires a “lawful arrest” under §316.193. If the officer violated the defendant’s constitutional rights during the stop, the refusal charge fails. In Arenas v. DHSMV (2012), the Second District held that the lawfulness of the arrest must be determined before a refusal suspension can stand.
• Challenge the adequacy of the warnings. The officer must inform the defendant of both the license suspension consequences and the criminal penalties for refusal. If the officer used outdated implied consent forms, skipped the criminal penalty warning, or delivered incomplete warnings, the statutory prerequisites fail. We review body camera footage to confirm exactly what the officer said.
• Challenge whether a “refusal” actually occurred. Not every failure to complete a test constitutes a “refusal.” If the defendant could not provide an adequate sample due to a medical condition — such as asthma, COPD, or a panic attack — that failure does not constitute a willful refusal. Similarly, if the defendant agreed but the officer withdrew the opportunity, the refusal element fails.

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.

Should You Refuse the Breathalyzer in Florida?

This question has become significantly more complicated since Trenton’s Law took effect. Before October 1, 2025, many defense attorneys advised first-time offenders to refuse because the only consequence was an administrative license suspension — and refusing prevented the State from obtaining a BAC number. After Trenton’s Law, that calculation has changed dramatically.

Today, refusing creates an independent criminal charge on top of the DUI. A first refusal adds a second-degree misdemeanor. A second adds a first-degree misdemeanor. The prosecutor can also tell the jury that you refused — and juries frequently interpret refusal as consciousness of guilt. On the other hand, providing a breath sample gives the State a BAC number that becomes powerful evidence at trial.

There is no one-size-fits-all answer. The best approach depends on the circumstances of the stop, the driver’s prior record, and the strength of the State’s case. Tampa criminal defense attorney Rocky Brancato can evaluate these factors during a free consultation.

Frequently Asked Questions About Breathalyzer Refusal in Florida

Is refusing a breathalyzer a crime in Florida?

Yes. Under §316.1939 as amended by Trenton’s Law (effective October 1, 2025), every refusal to submit to a breath or urine test after a lawful DUI arrest is a criminal misdemeanor. A first refusal carries up to 60 days in jail. A second or subsequent refusal carries up to 1 year in jail. These penalties are separate from the DUI charge itself. The Brancato Law Firm, P.A. defends breathalyzer refusal charges throughout Hillsborough, Pinellas, and Pasco Counties.

Can I get my license back after a refusal suspension?

The first step is requesting a formal review hearing within 10 days of the arrest. If the hearing is successful, the suspension may be invalidated. If the suspension stands, a first refusal results in a 1-year suspension, and a second refusal results in 18 months. After the first 90 days of a first refusal suspension, you may apply for a hardship license. Call The Brancato Law Firm, P.A. at (813) 727-7159 immediately after your arrest — the 10-day deadline to request a hearing is strict.

Trenton’s Law and Related Issues

Does Trenton’s Law apply to BUI refusals?

Yes. The same criminal penalties apply to refusal of breath or urine tests during BUI investigations under §327.35215. Furthermore, a prior BUI refusal counts toward elevating a subsequent DUI refusal to a first-degree misdemeanor, and a prior DUI refusal counts toward elevating a subsequent BUI refusal. This cross-counting means boaters and drivers face the same escalating criminal consequences.

What if the officer did not read me the implied consent warnings?

The officer must inform you of the license suspension consequences and the criminal penalties for refusal before requesting the test. If the officer failed to deliver these warnings — or delivered them inaccurately — the criminal refusal charge under §316.1939 may fail. At The Brancato Law Firm, P.A., we review body camera footage to determine exactly what warnings the officer provided.

Hiring a Defense Attorney

Can a breathalyzer refusal charge be dismissed?

Yes. If the arrest lacked probable cause, if the officer failed to deliver the required warnings, or if the defendant did not actually “refuse” the test (for example, due to a medical inability to provide a sample), the charge can be challenged and potentially dismissed. In our practice, we have won Not Guilty verdicts in refusal cases by demonstrating on video that the client showed no signs of impairment. Call The Brancato Law Firm, P.A. at (813) 727-7159 for a free consultation.

You Are Reading This for a Reason — Let Us Help

Trenton’s Law fundamentally changed the stakes of refusing a breathalyzer in Florida. What was once an administrative consequence is now an independent criminal charge — on top of the DUI itself. However, the refusal statute requires the State to prove five specific elements, and each one presents a defense opportunity. From challenging probable cause to scrutinizing the officer’s warnings on body camera, these cases are defensible.

Time is critical. You have only 10 days from your arrest to request a formal review hearing to challenge the administrative license suspension. The earlier Tampa criminal defense attorney Rocky Brancato gets involved, the more options you have.

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-related charges, visit our DUI Defense practice page. You may also find our guides on What Is DUI in Florida? and What Is BUI in Florida? helpful — breathalyzer refusal issues arise in both DUI and BUI cases, and Trenton’s Law applies equally to both.

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.

I’m Tampa criminal defense attorney Rocky Brancato. With more than 25 years defending criminal cases in Hillsborough County, membership in the National College for DUI Defense (NCDD) and the DUI Defense Lawyers Association, an AV Preeminent rating from Martindale-Hubbell, and more than 150 jury trials to verdict, I bring the experience that DUI manslaughter charges demand.

How Does Florida Define DUI Manslaughter?

DUI manslaughter is defined under §316.193(3). The State must prove three elements beyond a reasonable doubt. First, the defendant violated §316.193(1) — meaning the defendant drove or was in actual physical control of a vehicle while impaired by alcohol, drugs, or a chemical substance, or had a blood-alcohol or breath-alcohol level of 0.08 or higher. Second, the defendant operated a vehicle. Third, by reason of that operation, the defendant caused or contributed to causing the death of a human being or an unborn child.

The phrase “caused or contributed to causing” is critical. The State does not need to prove that the defendant was the sole cause of the fatal crash. If the defendant’s impaired driving contributed to the death in any way — even if the victim was also at fault — the State can obtain a conviction. Because of this broad causation standard, DUI manslaughter cases are among the most aggressively prosecuted charges in Hillsborough County.

Florida Statute §316.193(3)(c)3: DUI manslaughter is a second-degree felony punishable by up to 15 years in prison, 15 years of probation, and a $10,000 fine. Every DUI manslaughter conviction carries a mandatory minimum of 4 years in prison — the judge cannot sentence below this floor regardless of mitigating circumstances. If the defendant also left the scene of the crash, the charge becomes a first-degree felony punishable by up to 30 years. Under Trenton’s Law (HB 687, effective October 1, 2025), a second conviction for DUI manslaughter is also a first-degree felony. At The Brancato Law Firm, P.A., we defend DUI manslaughter charges throughout the 13th Judicial Circuit.

What Are the Penalties for DUI Manslaughter?

The penalties depend on the specific circumstances of the crash and the defendant’s criminal history:

Warning — Trenton’s Law Changes (Effective October 1, 2025): Trenton’s Law (HB 687) — named after Trenton Stewart, an 18-year-old college student killed by a drunk driver in Jacksonville in 2023 — made two critical changes. First, a second conviction for DUI manslaughter, BUI manslaughter (§327.35(3)(c)3), vehicular homicide (§782.071), or vessel homicide (§782.072) is now a first-degree felony carrying up to 30 years in prison. Second, refusing a breath or urine test after a DUI arrest is now a separate criminal offense — a second-degree misdemeanor for a first refusal, a first-degree misdemeanor for a second. At The Brancato Law Firm, P.A., we stay current on every legislative change that affects how we defend these cases.

What Must the State Prove to Convict You of DUI Manslaughter?

The State must prove every element beyond a reasonable doubt. Each element presents a potential avenue for defense:

• Impairment or unlawful BAC. The State must prove the defendant was impaired by alcohol, drugs, or a chemical substance — or had a blood-alcohol or breath-alcohol level of 0.08 or higher. Without reliable chemical test results or compelling evidence of impairment through officer observations and field sobriety exercises, this element fails.
• Operation of a vehicle. The defendant must have been driving or in actual physical control of the vehicle at the time of the crash. In cases where the defendant was found outside the vehicle or where multiple people were in the car, the State must prove who was behind the wheel.
• Causation. The defendant’s operation of the vehicle must have caused or contributed to causing the death. This is often the most contested element. If the victim’s own conduct — such as running a red light, making an illegal turn, or driving impaired — was the sole cause of the crash, the defendant’s impairment did not cause the death.
• Death of a human being or unborn child. The State must prove the victim died as a result of injuries sustained in the crash, typically through medical examiner testimony and autopsy results.

How Do We Defend DUI Manslaughter Charges?

DUI manslaughter carries some of the heaviest penalties in Florida criminal law, but these cases are defensible. At The Brancato Law Firm, P.A., we attack the State’s case on every front:

• Challenge the DUI evidence. If the breath test result is unreliable — because the operator failed to follow calibration protocols, the machine malfunctioned, or the 20-minute observation period was not maintained — the court may exclude it. Similarly, field sobriety exercises conducted on an uneven surface, in poor lighting, or by an improperly trained officer may be discredited.
• Challenge causation with expert witnesses. Causation is frequently the strongest defense. An independent accident reconstruction expert analyzes speed, point of impact, road conditions, and visibility to determine whether the impairment actually contributed to the crash. In addition, an ASE-certified mechanic can inspect the vehicle for mechanical defects — failed brakes, tire blowouts, or steering malfunctions — that may have caused the crash independently of any impairment.
• Challenge the traffic stop. If law enforcement had no lawful basis to initiate the traffic stop, every piece of evidence obtained after the stop — including the breath test, blood draw, and officer observations — may be suppressed under the Fourth Amendment.
• Challenge the blood draw. In fatal crash cases, law enforcement frequently obtains a blood sample rather than a breath sample. The State must prove the blood was drawn by qualified personnel, stored properly, and tested using accepted methods. Any break in the chain of custody creates grounds for exclusion.
• Argue independent intervening cause. If the victim’s own negligent or reckless conduct was the sole cause of the crash, the defendant’s impairment did not cause the death. This defense requires thorough investigation of the victim’s actions, toxicology, and driving behavior.

What Is the Difference Between DUI Manslaughter and Vehicular Homicide?

Prosecutors frequently charge DUI manslaughter and vehicular homicide arising from the same fatal crash, but these are separate offenses with different elements. DUI manslaughter under §316.193(3) requires proof that the defendant was impaired or had an unlawful BAC. In contrast, vehicular homicide under §782.071 requires proof that the defendant operated a vehicle in a reckless manner likely to cause death or great bodily harm — but does not require proof of impairment.

Because of this distinction, the defense strategies differ significantly. A DUI manslaughter defense focuses on challenging the evidence of impairment and the chemical test results. A vehicular homicide defense focuses on whether the defendant’s driving conduct rose to the level of recklessness. When prosecutors file both charges, we build independent defenses for each count. Furthermore, if the State’s impairment evidence is weak but the driving conduct was arguably reckless, the defendant faces vehicular homicide exposure even if the DUI manslaughter charge fails.

What Should You Do If You Are Facing DUI Manslaughter Charges?

DUI manslaughter is a life-altering charge. If you or a family member faces this accusation, take these steps immediately:

1. Exercise your right to remain silent. In fatal crash investigations, law enforcement conducts extensive interviews — often at the hospital or at the scene while the defendant is in shock. Everything you say becomes evidence. Politely invoke your right to silence and request an attorney.
2. Contact a defense attorney before speaking with anyone. The State begins building its case within hours of a fatal crash. Crash investigators, blood draw technicians, and prosecutors all work quickly. An experienced attorney can intervene early — preserving evidence, protecting your rights, and identifying defense opportunities before they disappear.
3. Preserve all evidence. Dashcam footage, vehicle data recorders (black boxes), cell phone records, and witness contact information can all support the defense. Do not consent to a vehicle search beyond what law enforcement can lawfully obtain.
4. Understand the timeline. If you have been arrested and booked at Orient Road Jail or Falkenburg Road Jail, your first appearance before a Hillsborough County judge happens within 24 hours. Bond in DUI manslaughter cases is typically high, and the judge may impose conditions including GPS monitoring, alcohol testing, and license surrender. An attorney at first appearance can argue for reasonable conditions.

Frequently Asked Questions About DUI Manslaughter in Florida

What is the mandatory minimum sentence for DUI manslaughter?

Every DUI manslaughter conviction under §316.193(3)(c)3 carries a mandatory minimum of 4 years in prison. The judge cannot impose a lesser sentence regardless of mitigating factors. If the defendant also left the scene, the charge becomes a first-degree felony — and the mandatory minimum still applies. Tampa criminal defense attorney Rocky Brancato fights to avoid conviction entirely rather than negotiate around the mandatory minimum.

Can DUI manslaughter charges be reduced?

In some cases, yes. If the State’s evidence of impairment or causation is weak, prosecutors may negotiate a reduction to a lesser charge — such as DUI causing serious bodily injury (F3) or even reckless driving with serious bodily injury. However, prosecutors face intense public pressure in fatal DUI cases, which makes reductions less common than in standard DUI cases. The strength of the defense determines the State’s willingness to negotiate.

Trenton’s Law and Enhanced Penalties

How does Trenton’s Law affect DUI manslaughter cases?

Trenton’s Law (HB 687), effective October 1, 2025, added §316.193(3)(c)3.c, which makes a second conviction for DUI manslaughter a first-degree felony carrying up to 30 years in prison. The law also counts prior convictions for BUI manslaughter (§327.35(3)(c)3), vehicular homicide (§782.071), and vessel homicide (§782.072) as qualifying priors. In addition, Trenton’s Law makes refusing a breath or urine test a separate criminal offense. Because these changes are significant, anyone arrested for DUI after October 1, 2025 faces a fundamentally different legal landscape.

Is DUI manslaughter the same as murder?

No. DUI manslaughter does not require intent to kill. The State must only prove that the defendant drove while impaired and that the impaired driving caused or contributed to a death. However, in extreme cases — such as when the defendant has multiple prior DUI convictions — prosecutors have charged DUI-related deaths as second-degree murder under a “depraved mind” theory. At The Brancato Law Firm, P.A., we defend against all DUI-related homicide theories.

Hiring a Defense Attorney

Why do I need a specialized DUI defense attorney for a manslaughter charge?

DUI manslaughter sits at the intersection of DUI law, homicide law, and accident reconstruction science. The defense requires expertise in breathalyzer and blood test challenges, an understanding of crash dynamics, and the ability to retain and work with expert witnesses. Rocky Brancato holds membership in the NCDD and the DUI Defense Lawyers Association, has tried more than 150 jury cases, and has the resources to mount the comprehensive defense these charges require.

How much does it cost to defend a DUI manslaughter charge?

DUI manslaughter defense typically involves accident reconstruction experts, toxicology consultants, and extensive investigation — which means fees reflect the complexity of the case. 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

A DUI manslaughter charge carries a mandatory minimum of 4 years in prison, the possibility of up to 30 years if you left the scene or have a prior conviction, and a permanent felony record that follows you for life. However, these cases turn on the State’s ability to prove impairment and causation — and both elements are subject to aggressive challenge. Rocky Brancato has defended the most serious DUI charges in Hillsborough County for more than 25 years, and we know how to fight for the best possible outcome.

Every hour matters. The earlier Tampa criminal defense attorney Rocky Brancato gets involved, the more evidence we can preserve and the more options you have.

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 may also find our guides on What Is DUI in Florida? and What Is Leaving the Scene of an Accident in Florida? helpful — these charges frequently arise together, and understanding the full picture is critical to an effective defense.

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.