Florida’s DUI Refusal Law: Refusing Breath Tests are a Separate Crime

The Florida DUI refusal law changed significantly on October 1, 2025. A first alleged refusal of a lawful breath or urine test can now create a separate misdemeanor charge in addition to the DUI case and administrative license consequences.

Natalie Lopez, Esq. defends DUI and traffic cases in Fort Lauderdale and Broward County.

At Natalie Lopez Attorney at Law, P.A., we regularly defend DUI cases throughout South Florida and closely track changes in Florida criminal law that directly affect how these cases must be handled. Florida’s new refusal law is one of those changes because it created an entirely new layer of criminal exposure for drivers accused of DUIs. Florida made a major change, and anyone arrested for DUI needs to understand what it means.

Effective October 1, 2025, Florida changed the implied consent laws and created a new criminal penalty for a first refusal to submit to a lawful breath or urine test following a DUI arrest. Before this change, a first refusal generally resulted only in administrative driver’s license consequences, while a second or subsequent refusal could be separately prosecuted as a crime.

That is no longer the law. Under section 316.1939, Florida Statutes, a first refusal can now be charged as a second-degree misdemeanor. A second or subsequent refusal can be charged as a first-degree misdemeanor.

In practical terms, a person arrested for DUI who refuses testing may now leave the arrest facing two separate criminal charges:

1. Driving Under the Influence; and
2. Refusal to Submit to Testing.

That substantially changes the strategy of defending a Florida DUI case.

What Changed?

Florida has long operated under an “implied consent” system.

By driving in Florida, a driver is deemed to have consented to certain lawful testing under the circumstances established by section 316.1932, Florida Statutes. When law enforcement makes a lawful request for a breath or urine test following a DUI arrest, the driver must also be advised of the consequences of refusing.

The warnings have now become significantly more serious. A driver must be advised not only that refusing testing can result in suspension of their driving privilege, but also that the refusal itself can constitute a separate misdemeanor offense.

For a first refusal, the new criminal charge is a second-degree misdemeanor. For a second or subsequent refusal, it is a first-degree misdemeanor.

A DUI Arrest Can Now Produce Two Criminal Cases to Fight

This is where the new law becomes particularly difficult. The DUI and refusal arise from the same investigation, and they are now separate criminal offenses with different elements.

A defense attorney may seek to sever the charges for purposes of trial where appropriate. That can prevent the two charges from simply being tried together where doing so would unfairly prejudice the defense.

But severance creates its own strategic problem.

Imagine that the State offers a relatively favorable resolution on the refusal charge. Maybe the client can resolve the refusal with probation, court costs, or another negotiated sentence.

That sounds appealing until the bigger picture is considered.

The DUI is still pending.

The client could resolve the refusal, be placed on probation, pay costs, and obtain a criminal disposition, only to turn around and continue litigating the DUI arising from the exact same arrest.

For many defendants, that makes little practical sense.

If the DUI case has viable defenses, the client may want to fight it. But resolving the refusal separately means accepting a criminal disposition while the most consequential part of the case remains open.

Conversely, a defendant may hesitate to accept a plea to the DUI simply because the State has added pressure through a separate refusal charge.

The new law gives prosecutors another charge and another bargaining tool. It also gives defense lawyers another issue that must be analyzed before advising a client whether to negotiate, sever, litigate, or proceed to trial.

There is no one-size-fits-all answer.

What Is the Punishment for Refusing a Breath or Urine Test?

A first refusal is now a second-degree misdemeanor.

Under Florida law, a second-degree misdemeanor is punishable by up to:

• 60 days in jail; and
• a $500 fine.

A second or subsequent refusal is a first-degree misdemeanor, punishable by up to:

• one year in jail; and
• a $1,000 fine.

Those criminal penalties are separate from the driver’s license consequences.

You Can Still Lose Your License for Refusing

The new criminal charge does not replace Florida’s administrative license suspension.

A first refusal still carries a one-year driver’s license suspension.

A second or subsequent refusal generally carries an 18-month suspension.

Importantly, the statute expressly separates the administrative license proceeding from the criminal prosecution. The result of one does not automatically control the result of the other.

That means a driver can potentially be dealing with:

• a DUI prosecution;
• a separate criminal refusal prosecution; and
• an administrative driver’s license suspension.

All from one traffic stop.

And a DUI Conviction Has Its Own License Consequences

The refusal suspension also should not be confused with the license consequences associated with an actual DUI conviction.

For a first DUI conviction, Florida law requires the driver’s license to be revoked for at least 180 days and up to one year. Subsequent DUI convictions can produce substantially longer revocation periods.

That creates an important distinction.

Refusing the test can create an immediate administrative license problem and a new misdemeanor charge.

Then, if the defendant is ultimately convicted of DUI, the DUI conviction itself carries additional mandatory licensing consequences.

The refusal does not make the DUI disappear. And defeating or resolving the DUI does not necessarily erase the separate consequences associated with the refusal!

The Decision to “Blow or Not Blow” Changed

For years, people have casually given advice about whether someone should refuse a breath test during a DUI investigation.

That advice was already overly simplistic. But the advice was usually to just take the refusal administrative restrictions while your defense lawyer successfully fought the DUI.  But now the advice has changed and is more dangerous now.

Since October 1, 2025, a first refusal can itself result in a criminal charge. At the same time, providing a breath sample may give the State evidence it can attempt to use to prove the DUI.

The decision carries consequences either way. More importantly, once someone has already been arrested, the defense must look at the entire case rather than focusing only on whether the person “blew” or refused. The legality of the stop, the reason for the detention, the observations of the officer, body-camera footage, field sobriety exercises, the implied consent warning, the timing and wording of the request for testing, the legality of the arrest, and the alleged refusal itself can all become important.

DUI Defense Became More Complicated

Florida’s new refusal law added another layer to this technical area of criminal law.

A person who once would have faced a DUI charge and an administrative refusal suspension now faces an additional misdemeanor prosecution arising from the same decision not to provide a breath or urine sample.

That creates consequences for plea negotiations and trial strategy. Sometimes resolving the refusal separately may make sense. Sometimes it may make very little sense to accept probation or another criminal disposition on the refusal while continuing to fight the DUI. Sometimes both charges should be aggressively litigated.

The correct strategy depends on the evidence, the legality of the testing request, the client’s history, the strength of the DUI case, the licensing consequences, and the client’s overall objectives.

One arrest can now create multiple legal problems. They need to be defended as one coordinated strategy.

Natalie Lopez Attorney at Law, P.A. represents individuals facing DUI and other criminal charges throughout South Florida. When one arrest creates multiple charges and separate license consequences, the strategy is to account for all of them from the start.

What a Fort Lauderdale DUI Lawyer Reviews After a Refusal Charge

The Florida DUI refusal law does not make every alleged refusal automatically valid. Defense review may address whether the stop and arrest were lawful, whether the officer had the required basis for requesting a test, whether the warning was given accurately, whether the request was clear, and whether the driver’s words or conduct legally amounted to a refusal.

Body-camera footage, timestamps, breath-test-room video, dispatch records, witness observations, medical issues, language barriers, and the officer’s reports can affect that analysis. The DUI charge, refusal charge, and administrative suspension also have different procedures and should be coordinated rather than treated as isolated files.

Deadlines Can Arise Quickly After a Broward County DUI Arrest

Administrative license rights may involve short deadlines that are separate from the criminal court schedule. Waiting for an arraignment can leave important licensing questions unresolved. Prompt review can identify the current deadline, available records, release conditions, and the evidence that should be preserved.

Read more about being arrested for DUI in Fort Lauderdale. For advice based on the actual stop and testing request, contact Natalie Lopez, Esq. for a confidential consultation.