Refusal to Submit to DUI Testing in Florida
Florida drivers are deemed to have consented to lawful blood, breath, or urine testing.
Known as Implied Consent, all licensed Florida drivers are deemed to have consented to testing of their blood, breath, or urine for the purpose of determining the alcoholic content of their blood or breath if suspected of driving under the influence of alcoholic beverages or controlled substances.
Prior to 2025, a first time refusal to submit to blood, breath, or urine testing was administratively punished with a one year license suspension by the Florida DHSMV. Effective October 2025, a first time refusal to submit to a blood, breath, or urine test during a DUI investigation is subject to both criminal and administrative penalties.
Under Florida Statute 316.1932, the crime of Refusal to Submit to DUI Testing is committed in Florida when a person:
- Drives or is in actual physical control of a vehicle within the state of Florida;
- Is subsequently arrested for Driving Under the Influence; and
- Law enforcement has reasonable suspicion the driver was under the influence of:
- Alcoholic Beverages,
- Prescription Medications,
- Illegal Drugs or Controlled Substances.
- Refuses to submit to a lawful blood, breath, or urine test.
Penalties for Refusal to Submit to DUI Testing
Refusal to Submit to Testing is a separate offense from the accompanying DUI charge and the potential penalties are in addition to any penalties a person arrested for DUI.
First Refusal to Submit to DUI Testing
A first time Refusal to Submit to Testing is a Second Degree Misdemeanor in Florida and punishable by up to sixty (60) days in jail, six (6) months of probation, and a $500 fine.
A judge may sentence a person convicted of First Refusal to Submit to DUI Testing to probation, but may also impose a sentence up to sixty days in jail.
Administrative Penalties
Separate from any criminal penalties, a person who refuses to submit to a lawful blood, breath, or urine test after a DUI arrest will have their driver license suspended for one (1) year by the Florida DHSMV.
Second Refusal to Submit to DUI Testing
A second Refusal to Submit to DUI Testing is a First Degree Misdemeanor in Florida and punishable by up to sixty (60) days in jail, six (6) months of probation, and a $500 fine.
A judge may sentence a person convicted of First Refusal to Submit to Testing to probation, but may also impose a sentence up to the statutory maximum of sixty days in jail.
Administrative Penalties
Separate from any criminal penalties, a person who refuses to submit to a lawful blood, breath, or urine test after a DUI arrest for a second time will have their driver license suspended for eighteen (18) months by the Florida DHSMV.
Defenses to Refusal to Submit to DUI Testing
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common evidentiary defenses that are raised in Refusal to Submit to DUI Testing cases are:
Illegal Traffic Stop
A person is only required to submit to a blood, breath, or urine test after they were lawfully arrested for DUI. Consequently, a person can challenge a refusal to submit to a blood, breath, or urine test if they were subject to an:
- Illegal Traffic Stop; or
- Illegal DUI Arrest.
If it can be shown an officer was mistaken in his reason for conducting a traffic stop, the evidence obtained as a result of the illegal stop, including the refusal, is suppressed and the prosecutor is forced to dismiss the case.
Example of Illegal Traffic Stop
An officer stops a vehicle for an expired license plate and subsequently arrests the driver for DUI.
If proven the officer was mistaken about the license plate being expired, the judge will find that the officer made an illegal traffic stop and suppress any evidence, including the refusal, obtained as a result of the traffic stop.
Insufficient Probable Cause
In order to arrest a driver for DUI, an officer must have probable cause to believe that a driver was under the influence of alcoholic beverages or controlled substances to the extent the driver’s normal faculties were impaired.
If it can be shown the officer’s probable cause was based on insufficient evidence or an unreasonable conclusion, the arrest will be deemed illegal and any subsequent evidence, including the refusal, will be suppressed, resulting in the prosecutor dismissing both the DUI and the Refusal to Submit to DUI Testing.
Example of Insufficient Probable Cause
Sometimes an officer’s sole reason to arrest a driver for DUI is based on the odor of alcohol.
However, the odor of alcohol by itself has been ruled an insufficient reason for an officer to believe that a driver is “under the influence” of alcoholic beverages to justify an arrest for DUI. [1]
Example of Unreasonable Probable Cause
If video objectively reveals the driver performed Field Sobriety Tests satisfactorily in contradiction to the officer’s written report, many judges will find the officer’s impairment conclusion unreasonable.
As a result, the judge will suppress the arrest evidence, including the Refusal, forcing the prosecutor to dismiss the DUI and Refusal charges.
Inadmissible Test Results
The Breathalyzer machines used by law enforcement are tightly regulated and subject to strict maintenance requirements in order to be deemed admissible. Additionally, the testing must be done in accordance with specific and standardized procedures.
The failure to either properly maintain the machines or to conduct the tests in accordance with required procedures can result in the breath alcohol test results being ruled inadmissible, no matter how high the breath alcohol results are.
Example
The failure of an officer to perform any of these simple steps may result in the breath alcohol results being thrown out.
- Did the officer conduct a continuous 20 minute observation prior to administering the breath alcohol test?
- Did the officer instruct the driver to “keep blowing” during the breath test?
- Did the officer calibrate the machine properly prior to conducting the breath alcohol test?
- Did the officer read Florida’s Implied Consent Law or incorrectly state the law?
Contact Orlando DUI Attorney Richard Hornsby
If you have been arrested or charged with the crime of Refusal to Submit to DUI Testing in Central Florida or the Greater Orlando metropolitan area, contact Orlando DUI Attorney Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.