REFUSING A BREATH TEST

(FLORIDA STATUTES 316.1932 and 316.1939)

In my personal experience, people have come up to me in various situations since I became and attorney and asked me “should I blow”.  I have told people that it was a personal decision best made based upon the circumstances leading up to their traffic stop.  However, the legislature has made their best efforts to take this decision away from motorists.  Starting on October 1, 2025, any refusal of a breath test (even a person’s first) is now a criminal offense punishable with a sentence of up to sixty (60) days in the county jail and a Five Hundred Dollar ($500.00) fine.  This new law is the culmination of a battle that has been waged since the early 1980s.

THE FIRST “IMPLIED CONSENT LAW”

Before the 1980s DUI was little more than a Criminal Traffic ticket punishable by a fine and a driver license revocation.  Then over the years the law evolved to be the two level process (Administrative and Criminal) that it is today.  In the early 1980s the legislature wanted to incentivize submission to breath tests and to punish people who refused to take the tests.  That is where the first administrative suspension was imposed against motorists who refused to take a breath test.  Essentially, motorists were required “consent” to a breath test as a condition to receiving a driver license (that fine print beside your signature on your physical license).  If a law enforcement officer should have probable cause to arrest an individual for DUI they were empowered to request a breath test.  At that time, if the motorist refuses, they are reminded of Florida’s implied consent law in the form of a warning (like those Miranda warnings you hear on TV shows).  After being advised of the consequences for refusing the test, if the motorist persists with their refusal, then their license is suspended for twelve (12) months.  A second or subsequent refusal results in an eighteen (18) month suspension.  These suspensions could be challenged in the County Court where their DUI was being litigated, but eventually the law was changed in the early 1990s which set up the present day administrative hearing process through the FLHSMV.  This law was expanded to include blood and or urine tests under certain circumstances.

THE FIRST CRIMINAL CHARGE FOR REFUSAL

In 2002, the Florida Legislature sought to further punish motorists for seeking the “safe harbor” of refusal by creating a new Criminal Misdemeanor charge for motorists who refuse a breath, blood, or urine test for the second time.  Not only do motorists face the eighteen (18) month administrative suspension, but now they faced a second Criminal Misdemeanor charge along with their DUI.  In order for this law to be operational, and additional paragraph or two are included in the warning of implied consent law to advise a motorist that they can also face an additional criminal misdemeanor charge if they refuse  Today, State Attorney’s offices throughout this state have used this second charge as additional leverage in plea negotiations involving DUI charges, even if the motorist was not convicted of DUI the first time around.

THE NEW CRIMINAL CHARGE FOR REFUSAL

Now the Florida Legislature has expanded the criminal misdemeanor charge for refusals of breath, blood, or urine tests to include all refusals during a DUI investigation.  In other words, what was once considered a viable option to help in an individual’s defense is now a crime in itself.  What was once an actual choice for an individual is no longer a choice at all.  That doesn’t mean that an individual who has little trust in the testing of their breath, blood, or urine can’t refuse that test, but they also need to be prepared to fight an additional charge as well.  Since motorists have been charged with second refusals since 2002, a well experienced DUI attorney will be read to defend these new charges.