Is Refusing a Breathalyzer a Crime in Florida?

Fully rewritten and updated September 2, 2026.

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.