You’re in your car on the side of the road in Fort Lauderdale. An officer has asked you to blow into a machine, and you have a few seconds to decide. Few people prepare for that moment. A lot of drivers have heard some version of the same advice: if you don't agree to a breath alcohol test, the state has nothing to use against you. That advice was not quite right even then, and as of October 1, 2025, it’s considerably more dangerous than it used to be.
Florida law changed. A first refusal that meets the statutory requirements is now a crime in its own right, in addition to the license suspension that has long followed. This blog explains what Florida's implied consent law requires, the consequences of refusing a breathalyzer test, the 10-day administrative deadline, and how the recent change affects drivers facing DUI allegations.
Call (954) 522-9997 or complete our online contact form for a free consultation. R. David Williams, P.A. defends drivers facing DUI and refusal charges throughout Fort Lauderdale and Broward County.
Key Highlights
- Under Florida's Trenton's Law, effective October 1, 2025, a qualifying first refusal to submit to a lawful breath or urine test is a second-degree misdemeanor.
- A first refusal can trigger a one-year administrative license suspension. A second or subsequent refusal can trigger an 18-month suspension.
- Refusing a breath test does not prevent prosecutors from pursuing a DUI charge using other evidence.
- Evidence of a refusal may be admitted in a criminal proceeding.
- Drivers generally have 10 days after issuance of a notice of suspension to request administrative review or pursue another available option.
- The standard hardship-reinstatement waiting period is 90 days for a first refusal, but a separate review-waiver procedure may be available to qualifying drivers.
- Criminal refusal charges and administrative license suspensions proceed separately, with different rules and deadlines.
Florida's Implied Consent Law, in Plain Terms
The Florida implied consent law, found in Fla. Stat. § 316.1932, establishes when drivers are considered to have consented to chemical or physical testing for impairment. By accepting the privilege of driving in Florida, you are treated as having consented to certain lawful breath, blood, or urine tests under the circumstances specified by statute.
That consent is not unlimited. The type of test, the reason for requesting it, and the circumstances surrounding an arrest all affect what the law permits. For example, the criminal refusal provisions in Fla. Stat. § 316.1939 generally require probable cause to believe the person was driving or in actual physical control of a vehicle while impaired, along with a lawful DUI arrest, subject to the statutory exception for certain testing requests.
The Warning the Officer Must Give You
Before a qualifying refusal can support a criminal charge, the officer must provide the warnings required by Florida law.
Under Fla. Stat. §§ 316.1932 and 316.1939, those warnings include the administrative consequences of refusal, such as:
- A one-year driver's license suspension for a first refusal
- An 18-month suspension for a second or subsequent refusal
- The potential criminal penalties for refusing a lawful breath or urine test
The criminal warning became particularly important after Florida changed its refusal law in 2025. Whether the officer provided the required warning, what was said, and when the warning occurred can become disputed issues in a refusal case.
What Changed on October 1, 2025?
Much of the advice circulating about refusing a breath test predates Florida's recent legislative change. House Bill 687, enacted as Chapter 2025-121, Laws of Florida, amended §§ 316.1932 and 316.1939 effective October 1, 2025. The legislation is known as Trenton's Law.
Before that date, a first qualifying refusal generally carried an administrative license suspension but was not itself a criminal offense. Criminal refusal penalties applied to qualifying repeat-refusal situations.
Under the amended Fla. Stat. § 316.1939, a driver who meets the statutory conditions and refuses a lawful breath or urine test can now face:
- A second-degree misdemeanor for a first refusal
- A first-degree misdemeanor for a second or subsequent refusal
These charges are separate from any DUI charge arising from the same incident.
What Those Misdemeanor Levels Mean
Under Fla. Stat. §§ 775.082 and 775.083, the standard maximum penalties are:
| Offense | Maximum Jail Sentence | Maximum Fine |
| First qualifying refusal — second-degree misdemeanor | 60 days | $500 |
| Second or subsequent qualifying refusal — first-degree misdemeanor | One year | $1,000 |
These are statutory maximums, not automatic sentences. A refusal charge may be filed alongside a DUI charge, exposing a driver to separate criminal allegations and an administrative license suspension arising from the same incident.
Is It Smart to Refuse a Breathalyzer Test?
Drivers frequently ask, “Is it smart to refuse a breathalyzer test?” The more useful question is what legal consequences can follow each choice.
No attorney can tell every driver in advance what will happen after a testing request. The circumstances of the stop, the lawfulness of the request, and the available evidence all affect the analysis.
The comparison below outlines several important differences between an unlawful breath-alcohol result and a qualifying refusal.
| Consequence | Breath Test Result of .08 or Higher | Qualifying Refusal |
| Administrative suspension for a first occurrence | Six months | One year |
| Standard waiting period for hardship eligibility after a sustained suspension | 30 days | 90 days |
| Separate criminal charge based on the testing decision | No separate refusal charge | Second-degree misdemeanor for a first refusal |
| Refusal evidence admissible in court | Not applicable | Yes, subject to applicable law |
| Administrative suspension for a repeat occurrence | Longer suspension may apply | 18 months for a second or subsequent refusal |
| Hardship eligibility after repeated refusals | Depends on circumstances | Not available for two or more refusals under the standard reinstatement rules |
These figures describe standard administrative consequences and waiting periods. They do not account for every exception or eligibility pathway.
Certain qualifying drivers may pursue restricted driving privileges through a procedure that requires waiving administrative review of the suspension.
Why Refusing Does Not Eliminate the Evidence
One common misconception is that refusing a breath test leaves prosecutors without evidence of impairment. Under Fla. Stat. § 316.1932, evidence of a refusal to submit to a lawfully requested test may be admitted in a criminal proceeding.
Prosecutors may argue that a refusal suggests consciousness of guilt. Defense counsel may challenge that interpretation based on the circumstances, including confusion, medical limitations, the warnings given, and the driver's statements or conduct.
A refusal does not erase the remaining evidence. Officer observations, driving behavior, field sobriety exercises, witness statements, and recordings may still be relevant to a DUI prosecution.
What Counts as a Refusal in Florida?
A refusal is not necessarily limited to saying no. Depending on the circumstances, officers may interpret other conduct as refusing to submit to a lawful test, including:
- Conditioning agreement to testing on speaking with an attorney first
- Agreeing to a breath test but failing to provide an adequate sample
- Insisting on a different test rather than the lawfully requested test
- Remaining silent or declining to respond after receiving the required warnings
These situations are not identical, and the surrounding facts are important. A respiratory condition, injury, language barrier, equipment issue, or confusion may explain conduct that an officer interpreted as refusal.
Whether the evidence establishes a legally sufficient refusal depends on the applicable statutory requirements and the facts.
Why Video Evidence Can Be Important
Roadside recordings, body-camera footage, and breath-testing room video may provide important information about what happened.
Recordings can help establish:
- What the officer requested
- Whether the required warnings were given
- What the driver said in response
- Whether the driver attempted to provide a breath sample
- Whether equipment problems or physical limitations affected testing
The sequence of events may be particularly important when a criminal refusal charge is filed. Because recording-retention policies vary, a Fort Lauderdale DUI defense attorney can take steps to request and preserve available evidence.
Two Separate Cases Start at the Same Time
A DUI arrest involving a refusal can lead to two proceedings. The criminal case moves through Broward County court. The administrative license suspension is handled separately by the Florida Department of Highway Safety and Motor Vehicles under Fla. Stat. § 322.2615.
Under § 316.1939(2)–(3), the disposition of an administrative proceeding does not determine a criminal refusal charge, and the disposition of that criminal refusal charge does not determine the administrative suspension.
Other Florida statutory provisions may affect particular DUI-related suspensions, so the relationship between the proceedings depends on the issues involved.
The 10-Day Deadline
After a DUI arrest, you have little time to decide how to address an administrative license suspension. Under Fla. Stat. § 322.2615, a driver generally has 10 days after issuance of the notice of suspension to request administrative review.
Depending on eligibility and the circumstances, the available options may include:
- Requesting a formal review hearing to challenge the suspension, where witnesses may be subpoenaed and questioned under oath.
- Requesting an informal review based on the submitted records.
- Seeking review of eligibility for restricted driving privileges under § 322.271(7), which may involve waiving administrative review and meeting additional requirements.
These choices have different consequences. For example, a driver who requests a formal hearing may preserve the opportunity to challenge the suspension. A qualifying driver who chooses the review-waiver procedure may instead pursue restricted driving privileges without following the standard hardship-reinstatement waiting period.
Missing the deadline can eliminate important options. Speaking with a Fort Lauderdale DUI defense attorney promptly can help you understand which procedure may apply.
Why a Formal Review Is Worth Considering
A formal review hearing can serve more than one purpose. The hearing gives a driver an opportunity to challenge the administrative suspension. It may also involve sworn testimony from officers or other witnesses.
That testimony can become relevant to disputed issues in the criminal case, including the lawfulness of the arrest, the testing request, the warnings given, and the alleged refusal. However, a formal review hearing does not guarantee that the suspension will be invalidated.
Choosing to waive administrative review may offer a different benefit for an eligible driver seeking restricted driving privileges. The decision involves a tradeoff that should be evaluated before the deadline expires.
How Refusal Cases Are Challenged
A criminal refusal charge does not mean every statutory element has been established. A Fort Lauderdale DUI defense attorney may examine several issues, depending on the evidence:
- Whether the arrest was lawful. Fla. Stat. § 316.1939 requires specified circumstances involving probable cause and a lawful DUI arrest, subject to statutory exceptions.
- Whether the required warnings were given. The prosecution must establish that the driver received the applicable administrative and criminal warnings.
- Whether the warnings were timely and accurate. The sequence of the request, warnings, and alleged refusal can affect the analysis.
- Whether the driver's conduct amounted to a refusal. Medical limitations, equipment problems, language barriers, and confusion may be relevant.
- Whether a prior refusal-related suspension supports an enhanced charge. Department records create a rebuttable presumption of a prior suspension rather than conclusive proof.
The available defenses depend on the specific allegations and the evidence.
Why a Prior Refusal-Related Suspension Is Important
Under Fla. Stat. § 316.1939, a qualifying prior refusal can increase the criminal classification from a second-degree misdemeanor to a first-degree misdemeanor. The statute also addresses how a prior refusal-related suspension may be established.
Department records showing a prior suspension are admissible and create a rebuttable presumption that the suspension occurred. That presumption may be challenged with appropriate evidence.
A criminal defense attorney can examine the prior administrative record and determine whether the prosecution has established the requirements for the enhanced charge.
The DUI Case Continues Either Way
Refusing a breath test does not automatically prevent a DUI prosecution. The state may rely on evidence such as:
- Officer observations
- Driving behavior
- Field sobriety exercises
- Statements made during the investigation
- Body-camera or dashboard-camera footage
- Witness testimony
The absence of a breath-alcohol reading may affect the evidence available to prosecutors, but it does not establish that the driver was unimpaired.
Defense counsel can evaluate whether the remaining evidence supports the DUI allegation and whether any evidence may be challenged or excluded.
Where These Cases Are Heard in Broward County
Fort Lauderdale is in Broward County, which is served by Florida's Seventeenth Judicial Circuit. Misdemeanor DUI and refusal charges are handled in County Court. If the circumstances support felony DUI charges, those charges fall within Circuit Court jurisdiction.
The administrative suspension process is separate and proceeds through the Florida Department of Highway Safety and Motor Vehicles. Each proceeding has its own rules, deadlines, and available remedies.
Coordinating the criminal defense with the administrative license matter can help a driver make informed decisions about both.
Frequently Asked Questions
Is refusing a breath test a crime in Florida?
Yes. Since October 1, 2025, a first refusal that meets the requirements of Fla. Stat. § 316.1939 is a second-degree misdemeanor. A second or subsequent qualifying refusal is a first-degree misdemeanor. Criminal penalties are separate from administrative license consequences.
How long will my license be suspended if I refuse a breathalyzer in Florida?
A first refusal generally triggers a one-year administrative suspension. A second or subsequent refusal can trigger an 18-month suspension. Whether you can challenge the suspension or obtain restricted driving privileges depends on the applicable procedures and eligibility requirements.
Can I still be charged with DUI in Fort Lauderdale if I refused the test?
Yes. Prosecutors may pursue DUI charges based on officer observations, driving behavior, field sobriety exercises, statements, and other evidence. A refusal does not prevent the state from proceeding with the DUI case.
Can prosecutors tell the jury I refused the breath test in Florida?
Evidence of a refusal to submit to a lawfully requested test may be admissible in a criminal proceeding. Prosecutors may argue that it indicates consciousness of guilt, while defense counsel may challenge that interpretation based on the circumstances.
What Is the 10-Day Deadline After a DUI Arrest in Broward County?
A driver generally has 10 days after issuance of the notice of suspension to request administrative review. Certain eligible drivers may instead pursue restricted driving privileges through a review-waiver procedure. Missing the deadline can eliminate important options.
How Soon Can I Drive Again After a Refusal in Fort Lauderdale?
For a first refusal, the standard hardship-reinstatement waiting period is 90 days following a sustained suspension. However, certain qualifying drivers may seek restricted driving privileges through a separate procedure involving waiver of administrative review. Eligibility depends on the circumstances.
Should I Ask for a Lawyer Before Deciding on the Breath Test in Florida?
You may ask to speak with a lawyer, but that request does not necessarily delay a lawful testing decision. Conditioning agreement to testing on first consulting counsel may be treated as a refusal. A DUI defense attorney can later review whether the testing request and alleged refusal met the legal requirements.
What if I Tried to Blow but the Machine Did Not Register in Broward County?
An unsuccessful breath sample does not automatically establish an intentional refusal. Medical conditions, physical limitations, equipment problems, and the driver's conduct may be relevant. A DUI defense attorney can review available recordings, reports, and testing records.
Is the License Hearing the Same as My Fort Lauderdale Court Case?
No. A criminal refusal charge is handled through the court system, while the administrative license suspension is handled by the Florida Department of Highway Safety and Motor Vehicles. The proceedings have different purposes and rules.
What Should I Bring to a First Consultation With a Fort Lauderdale DUI Attorney?
Bring your citation, arrest paperwork, notice of suspension, and any other documents you received from law enforcement. The date the notice was issued is particularly important because of the administrative review deadline. Information about prior DUI arrests or license suspensions may also be relevant.
Protect Your Driving Privileges and Understand Your Options
Refusing a breath alcohol test in Florida can leave you facing two separate problems: a criminal charge and an administrative license suspension. With only a short window to challenge the suspension or pursue restricted driving privileges, the decisions you make after an arrest can affect your ability to drive, work, and defend yourself in court.
I'm Fort Lauderdale criminal defense attorney R. David Williams. At the Law Offices of R. David Williams, P.A., you speak directly with me about your circumstances. I examine the traffic stop, the officer's request for testing, the warnings you received, and the evidence supporting the refusal allegation. I can also explain the administrative hearing process and how your license suspension may affect your options.
Call (954) 522-9997 or contact my office online for a free consultation. The sooner we discuss your situation, the more time we have to evaluate the deadlines and legal issues involved.
Knowledge | Experience | Integrity – R. David Williams
Copyright © 2026. Law Offices of R. David Williams, P.A. All rights reserved.
The information in this blog post (post) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through the post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient's state, country, or other appropriate licensing jurisdiction.
Law Offices of R. David Williams, P.A.
15 Southwest 10th Street
Fort Lauderdale, FL 33315
(954) 522-9997