Since October 1, 2025, a first qualifying refusal of a breath or urine test can lead to a separate criminal charge in Florida. It may also trigger an administrative suspension, so the refusal and the DUI accusation can begin moving on separate tracks before the DUI case reaches court.
Refusing a test doesn’t make the DUI accusation disappear or keep the refusal out of the case. The details of the arrest, test request, warning, and suspension notice all matter.
What Changed Under Florida’s Current Refusal Law
Florida Statute 316.1939 now permits a criminal charge for a first qualifying breath or urine refusal. Before the 2025 amendment, a refusal was generally treated as a criminal offense only after a prior refusal.
A first qualifying refusal is a second-degree misdemeanor. A second or subsequent qualifying refusal is a first-degree misdemeanor. The State must still establish the legal requirements for the charge.
A criminal refusal allegation depends on more than an officer saying a driver declined a test. The arrest and the breath or urine test request must have been lawful, and the driver must have received the required implied consent information. Florida’s implied consent law treats driving as consent to approved chemical testing after a lawful DUI arrest, subject to statutory procedures and warnings.
The Requested Test Determines the Potential Consequences
Identifying the requested test is one of the first steps after an arrest. The criminal refusal offense in Florida Statute 316.1939 applies to breath and urine testing, not the refusal of a blood test.
That distinction doesn’t mean refusing a blood test has no effect on driving privileges. Refusal of an approved breath, urine, or blood test can support an administrative suspension. The criminal statute and the administrative rules don’t cover precisely the same ground.
- Breath Test Refusal
A lawful refusal can support both a criminal allegation and an administrative license suspension. - Urine Test Refusal
A lawful urine refusal can also fall within the criminal statute and the administrative suspension process. - Blood Test Refusal
A blood test refusal isn’t the separate criminal offense defined by section 316.1939, but it can still have administrative suspension consequences.
A refusal-related suspension is generally one year for a first refusal and 18 months for a second or subsequent refusal. The paperwork should identify the requested test. Preserve your own recollection of the officer’s instructions and your response as well.
One Arrest Can Create Three Separate Proceedings
A DUI arrest involving a refusal can create three distinct matters: the DUI criminal case, a criminal refusal allegation, and an administrative suspension. The evidence may overlap, but the result in one proceeding doesn’t automatically decide the others.
A refusal to submit to breath, urine, or blood testing can be admitted as evidence in a DUI criminal proceeding. The prosecution may argue that it reflects awareness of impairment, while the defense can examine the circumstances surrounding the request, warnings, and arrest.
Florida law expressly separates the administrative and criminal processes. The outcome of a DHSMV review doesn’t determine the criminal refusal case, and the outcome of the criminal case doesn’t determine the administrative proceeding.
A prior refusal can also affect a later prosecution. DHSMV records showing a previous refusal-related suspension are admissible under the statute and create a rebuttable presumption of that prior suspension. The current allegation and any previous driving record issue should be examined separately rather than treated as self-explanatory.
The First 10 Days Matter for Your Driving Privileges
The suspension notice creates a short deadline separate from the court date on the DUI charge. A driver has 10 days from the date the notice is issued to request a formal or informal DHSMV review.
The temporary permit expires at midnight on the 10th day after issuance of the notice. Requesting administrative review doesn’t pause the suspension, although DHSMV must schedule a requested formal review within 30 days of receiving the request.
Gather the documents that establish the timeline before the deadline passes:
- The notice of suspension and temporary driving permit.
- The arrest affidavit, citation, and any property or release paperwork.
- The date, time, and location of the arrest.
- Your written recollection of the test request, implied-consent warning, and what you said or did.
Hardship reinstatement has limits after a refusal-related suspension. After a first refusal, a person must complete 90 days without a driver license or permit before becoming eligible for hardship reinstatement. After two or more refusals, hardship reinstatement is unavailable. DUI school may be part of the reinstatement process, but it doesn’t replace the need to address the suspension deadline.
What to Review After a Test Refusal
A useful review begins by separating the documents and evidence for each proceeding. We examine the arrest sequence, reports, available video or audio evidence, the requested test, and the wording and timing of the required warnings.
Important questions include whether the arrest was lawful, whether the requested test falls within the criminal statute, and whether the required warning was properly given. The same facts can also affect the DUI case and the handling of the driving privilege suspension.
We prepare DUI defense cases by reviewing reports and other evidence, interviewing witnesses, and examining the State’s case for weaknesses. Prompt review also preserves the clearest account of what occurred, especially when the suspension notice, test type, and warnings affect different parts of the case.