DUI defense

Refusing a Breath Test in Florida

Refusing a breath test in Florida has real consequences for your license and, since October 1, 2025, can be a separate crime even on a first refusal. It does not end the DUI case, and it can be defended.

Implied consent

By driving in Florida, you are deemed to have agreed to a lawful breath test for alcohol, or a urine test for drugs, if you are lawfully arrested for DUI. Before you refuse, the officer is supposed to tell you what a refusal means. In Broward County, breath tests are usually given by the Broward Sheriff’s Office on the Intoxilyzer 8000, sometimes in its mobile breath testing truck.

What a refusal means for your license

  • First refusal: your license is suspended for 1 year.
  • After a prior refusal suspension: 18 months.
  • Hard time: if the suspension is upheld, or you are not eligible for the first-time waiver, you cannot drive at all for 90 days before you can apply for a business-purposes license.

You have 10 days from the notice of suspension to request a formal review or choose the waiver if you qualify. See the 10-day rule. The outcome of the criminal case does not undo a refusal suspension, so the hearing matters.

Refusal as a crime

Since October 1, 2025, refusing a lawful breath or urine test after a DUI arrest is a crime even on the first refusal:

  • First refusal: a second-degree misdemeanor, up to 60 days in jail and a $500 fine
  • Second or later refusal: a first-degree misdemeanor, up to 1 year in jail and a $1,000 fine

Before that date, only a refusal by someone whose license had already been suspended for a refusal was a crime. Which rule applies depends on the date of your arrest.

The refusal can be used against you

A refusal is admissible as evidence in the DUI case. Prosecutors argue that a person who refuses was afraid of the result. But a refusal is not a breath result, and the State still has to prove impairment with other evidence, such as driving, video and the officer’s observations.

How refusal cases are defended

  • Was the arrest lawful? The implied consent law applies after a lawful DUI arrest. If there was no lawful stop or probable cause, the refusal can be challenged.
  • Was the warning given properly? The officer must explain the consequences of refusing.
  • Was it really a refusal? Confusion, a medical condition, a language barrier or an attempt that the machine did not register is not the same as a refusal.
  • Is the video consistent with the report? In South Florida most of the investigation is recorded.

Should you refuse?

There is no answer that fits everyone, and the choice is made at the roadside without a lawyer. What matters now is the decision you make in the next 10 days and how the case is defended. Call Adam at (954) 294-9372.

Frequently asked questions

Can I refuse field sobriety exercises?

Field sobriety exercises are different from the breath test. The implied consent law and its penalties cover the breath, urine and blood tests after an arrest, not the roadside exercises. Whether to take the exercises, and what a refusal of them means in your case, is something to discuss with Adam.

Can I get a hardship license after a refusal?

If this is your first suspension of this kind and you have no prior DUI conviction, you may be able to waive the review and get a business-purposes license right away. Otherwise, a 90-day hard time applies before you can apply.

Does refusing mean I will be convicted of DUI?

No. The State still has to prove that your normal faculties were impaired. Many refusal cases are reduced or won. Every case is different.

DUI Defense

More on DUI defense

DUI Defense overview

The 10-Day Rule

After a DUI arrest in Florida you have only 10 days to protect your driver license.

DUI Penalties

Florida's legislature has set minimum mandatory penalties for DUI, and they increase with a second or later conviction, a high breath result, a minor in the car, or a crash.

After a DUI Arrest

Most people are not prepared for the feeling in the pit of the stomach when a police cruiser appears behind them with its lights on.

Pulled Over for DUI

If a police officer stops you on suspicion of DUI, there are some guidelines you should follow.

DUI Accidents

A DUI after a crash raises the stakes.

Attorney Adam D. Harmelin

Your attorney

Adam D. Harmelin

Adam has devoted his legal career to defending people arrested and charged with crimes, and has defended thousands of people throughout Florida. He lists his cell phone on his business card and website, and takes calls during business hours, nights, weekends and holidays.

  • B.A. with honors, University of Florida, 1994
  • J.D., University of Miami School of Law, 1997
  • Admitted to The Florida Bar, 1997
  • U.S. District Court, Southern District of Florida

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