What Happens If I Refuse the Breath Test in Florida?

You’re sitting in your car after being pulled over. The officer asks you to blow into a breathalyzer. You’ve heard somewhere that refusing might help your case.

That used to be partially true. Not anymore. As of October 1, 2025, refusing a breath test in Florida became a criminal offense for first-time refusals.

So what really happens if you refuse a breath test in Florida, and what legal options do you have?

What You Agreed to When You Got Your Florida Driver’s License

When you obtained your Florida driver’s license, you automatically agreed to submit to breath, blood, or urine tests if a law enforcement officer has probable cause to believe you’re driving under the influence.

This agreement is called Florida’s Implied Consent Law under Statute 316.1932.

The law applies to:

• Anyone with a Florida driver’s license
• Out-of-state drivers operating vehicles in Florida
• Drivers suspected of being under the influence of alcohol or drugs

The implied consent warning must be read to you by the officer before you make your decision about testing. If the officer fails to properly inform you of the consequences of refusal, your attorney may be able to challenge the refusal in court.

Trenton’s Law Changes Everything

Under Trenton’s Law, refusing a breath or urine test for the first time is now a second-degree misdemeanor carrying:

• Up to 60 days in jail
• Up to $500 in fines
• A criminal record
• A one-year driver’s license suspension (administrative penalty)

This is on top of any DUI charges you might face. Prosecutors now have additional leverage because the refusal itself creates a separate criminal case.

What Happens Immediately After You Refuse

The moment you refuse a breath test, several things happen automatically:

Your license is suspended immediately. The officer will confiscate your physical license and provide you with a citation that serves as a 10-day temporary driving permit. After those 10 days, you cannot legally drive unless you take action.

You face criminal charges. The officer must now inform you that your refusal can result in criminal prosecution. This is a major change from the old system, where refusal was just an administrative penalty.

Your refusal can be used against you in court. Prosecutors will argue that you refused testing because you knew you were intoxicated. Florida courts allow juries to hear about your refusal as evidence of guilt.

License Suspension Penalties

The administrative penalties for refusing a breath test depend on whether you’ve refused before:

First refusal:

• 12-month license suspension
• 90-day hard suspension (no driving for any reason)
• Eligible for Business Purposes Only hardship license after 90 days

Second or subsequent refusal:

• 18-month license suspension
• Charged as a first-degree misdemeanor
• Up to one year in jail and $1,000 fine
• Not eligible for hardship license

These license suspensions are separate from any criminal court penalties. Even if you’re never convicted of DUI, the administrative suspension remains unless you successfully challenge it.

The 10-Day Window to Request a Formal Review Hearing

You have only 10 days from the date of your arrest to request a formal review hearing with the Florida Department of Highway Safety and Motor Vehicles.

This hearing is your opportunity to challenge the license suspension.

At the formal review hearing, a hearing officer will determine:

• Whether the officer had probable cause to believe you were driving under the influence
• Whether you were properly informed of the consequences of refusal
• Whether the refusal was lawful and properly documented

If you win the hearing, your license suspension is invalidated and removed from your driving record.

If you lose, you’ll serve the full suspension period.

When you request a formal review hearing, you typically receive a temporary driving permit, which is valid until the scheduled review hearing. This keeps you on the road while your attorney prepares your defense.

Can You Still Be Convicted of DUI If You Refuse the Test?

Yes. Refusing the breath test does not prevent a DUI conviction.

Prosecutors can build a DUI case using:

• Officer observations (bloodshot eyes, slurred speech, alcohol odor)
• Your driving behavior (swerving, speeding, running stop signs)
• Field sobriety test performance
• Video evidence from body cameras or dashcams
• Witness statements

Legal Defenses to Breath Test Refusal

If you refused a breath test, several defense strategies may apply to your case:

Unlawful traffic stop: If the officer lacked probable cause to pull you over in the first place, any evidence obtained after the illegal stop, including your refusal, may be inadmissible in court.

Improper implied consent warning: Officers must properly inform you of the criminal consequences of refusing under the new law. If they failed to update their warning or misled you about the penalties, your refusal charge may not hold up.

Medical inability to provide a sample: Certain medical conditions, like asthma, COPD, or neurological disorders, can make it physically impossible to provide an adequate breath sample.

Confusion or coercion: If you didn’t clearly understand what was being requested, or if law enforcement pressured you into refusing, the refusal may not be legally valid.

Administrative errors: Officers have strict deadlines for submitting paperwork to the DHSMV. If they miss these deadlines or submit incomplete documentation, your attorney can challenge the suspension.

Should You Refuse a Breath Test?

The decision to refuse depends on your specific situation, but under the new law, the calculation has changed significantly.

Arguments against refusing:

• You now face criminal charges even for a first refusal
• Prosecutors will use your refusal as evidence of guilt
• You still face DUI charges based on other evidence
• The license suspension is longer (12 months vs. 6 months)
• The hard suspension period is longer (90 days vs. 30 days)

Situations where refusal might still be considered:

• You genuinely believe the traffic stop was unlawful
• You have medical conditions that prevent accurate testing
• You’re certain you would blow significantly over the legal limit
• You’ve discussed the strategy with an attorney beforehand

In most cases, criminal defense attorneys now advise clients differently than they did before Trenton’s Law. The automatic criminal charges make refusal a much riskier proposition.

What About Field Sobriety Tests?

Field sobriety tests are different from breath tests. These are the physical tests conducted at the roadside, like:

• Walk and turn test
• One-leg stand test
• Horizontal gaze nystagmus (following a pen with your eyes)

You can refuse field sobriety tests without criminal or administrative penalties. These tests are voluntary and are not covered under Florida’s Implied Consent Law.

However, refusing field sobriety tests won’t prevent your arrest if the officer already has probable cause based on your driving behavior, appearance, or the smell of alcohol.

Take Action Immediately If You’ve Refused a Breath Test

At The Law Office of James P. Kelly, you speak directly with an attorney who understands Florida’s updated DUI laws. We handle every aspect of your case, from the DHSMV administrative hearing to criminal court proceedings.

Don’t let a breath test refusal mess up your future. Call us today to discuss your legal options and start building your defense.