Refusing a Breathalyzer in Florida
- McMann, P.A.
- Apr 13
- 5 min read
Updated: Apr 21
Refusing a Breathalyzer in Florida: Is It Worth the Risk?
Driving under the influence (DUI) is a serious offense in Florida, and law enforcement officers are vigilant about spotting impaired drivers. If you’re pulled over on suspicion of DUI—whether due to alcohol or drugs—one of the first things an officer may request is a breathalyzer test to measure your blood alcohol concentration (BAC). But what happens if you refuse to blow? Is it a smart move, or does it dig you into a deeper legal hole?
This blog explores the consequences of refusing a breathalyzer in Florida, including legal penalties, administrative repercussions with the DMV, and details about the temporary driving permit issued after a DUI arrest. We’ll break down Florida statutes, weigh the pros and cons, and help you understand why refusal might not be the escape you think.
Why Officers Request a Breathalyzer
When an officer suspects you’re driving under the influence—based on erratic driving, slurred speech, or the smell of alcohol—they’ll likely ask you to submit to a breathalyzer test. This device measures your BAC, with Florida’s legal limit set at 0.08% for drivers 21 and older (lower for minors or commercial drivers).
The test provides critical evidence for a DUI charge under Florida Statute § 316.193. Agreeing to the test seems straightforward, but many drivers hesitate, wondering if refusing will protect them from a DUI conviction. Spoiler: it’s not that simple.
Can You Be Forced to Take a Breathalyzer?
In Florida, you cannot be physically forced to take a breathalyzer test at a traffic stop. The state operates under an implied consent law, meaning that by driving on Florida roads, you’ve already agreed to submit to approved chemical tests (breath, blood, or urine) if an officer has probable cause to suspect DUI. However, refusing a breathalyzer is your legal right—no officer can strap you to a machine and make you blow.
That said, implied consent comes with strings attached. Refusal triggers automatic consequences, both administratively (via the Florida Department of Highway Safety and Motor Vehicles, or DHSMV) and legally (in court). Let’s unpack these.
Consequences of Refusing a Breathalyzer in Florida
Refusing a breathalyzer doesn’t make a DUI case disappear—it often complicates things. Here’s what you face under Florida Statute § 316.1932 (the Implied Consent Law):
Administrative Penalties (DMV Consequences)
License Suspension:
First Refusal: Your driver’s license is suspended for 12 months. This is separate from any DUI conviction and kicks in immediately after your arrest.
Second or Subsequent Refusal: The suspension jumps to 18 months, and refusal becomes a first-degree misdemeanor (up to 1 year in jail and a $1,000 fine).
No Hardship License Initially: For a first refusal, you’re ineligible for a hardship license (for work or medical needs) for 90 days. For subsequent refusals, the wait is 1 year.
Mandatory Notification: After refusing, the officer will issue a DUI citation, which doubles as a 10-day temporary driving permit (more on this below).
Legal Penalties (Court Consequences)
Misdemeanor Charge for Refusal: A second or subsequent refusal is a first-degree misdemeanor, adding criminal charges on top of any DUI case.
Prosecution Leverage: Refusing a breathalyzer doesn’t stop a DUI arrest. Officers can still use field sobriety tests, witness statements, or other evidence (e.g., open containers) to charge you. Prosecutors may argue that your refusal shows “consciousness of guilt,” strengthening their case.
No Test, No Defense: Without a BAC reading, you lose the chance to prove your BAC was below 0.08%, which could have weakened the DUI charge. Refusal often leaves you fighting subjective evidence like an officer’s observations.
The 10-Day Temporary Driving Permit
If you refuse a breathalyzer and are arrested for DUI, the officer typically issues a DUI citation that serves as a temporary driving permit for 10 days. This is true under Florida Statute § 322.2615. The permit allows you to drive while the DHSMV processes your license suspension for refusal. However:
The 10-day period starts immediately upon arrest.
You must act fast—within those 10 days, you can request a formal or informal review hearing with the DHSMV to challenge the suspension. If you don’t, the suspension takes effect on day 11.
A formal review hearing may extend your driving privileges until the hearing concludes, but you’ll need a DUI attorney to navigate this effectively.
Is Refusing a Breathalyzer a Good Idea?
Refusing a breathalyzer is a gamble with steep risks. Here’s a quick breakdown:
Potential Benefits of Refusal
No Direct BAC Evidence: Without a breathalyzer result, prosecutors lack a concrete BAC number, forcing them to rely on circumstantial evidence like driving patterns or field sobriety tests. This can make some DUI cases harder to prove.
Possible Calibration Issues Avoided: Breathalyzers aren’t foolproof—faulty calibration or improper use can skew results. Refusing sidesteps this, though it’s a minor point since officers rarely admit device errors.
Major Downsides of Refusal
Automatic License Suspension: The 12-month (or 18-month) suspension hits regardless of whether you’re convicted of DUI. This can disrupt work, school, or family life.
Criminal Charge for Repeat Refusals: A second refusal adds a misdemeanor to your record, piling on fines and potential jail time.
Stronger Prosecution Case: Juries often view refusal as an admission of guilt, and Florida law allows prosecutors to argue this point in court.
No Way to Prove Sobriety: If you’re below the 0.08% limit, refusing eliminates your chance to demonstrate it, potentially turning a winnable case into a conviction.
Most DUI attorneys advise against refusal unless you’re certain your BAC is well over the limit and other evidence (e.g., a clean driving record or no field sobriety test) is minimal. Even then, the administrative penalties often outweigh any courtroom advantage.
Florida Statutes Governing Breathalyzer Refusal
Florida Statute § 316.193: Defines DUI offenses, including driving with a BAC of 0.08% or higher or being impaired by alcohol/drugs.
Florida Statute § 316.1932: The Implied Consent Law, requiring drivers to submit to breath, blood, or urine tests if lawfully arrested for DUI. Refusal triggers suspensions and penalties.
Florida Statute § 322.2615: Outlines DHSMV procedures for license suspensions post-refusal, including the 10-day permit and hearing options.
Real-World Impact
Florida’s DUI enforcement is strict—over 30,000 DUI arrests were reported in 2023, per the Florida Department of Law Enforcement. Refusal cases are common, and the DHSMV doesn’t hesitate to suspend licenses. For example, a 2022 Tampa case saw a driver lose their license for 12 months after refusing a breathalyzer, even though the DUI charge was later dropped due to weak evidence. The driver still faced months without a car, affecting their job and finances.
Young drivers, especially those under 21, face harsher scrutiny due to Florida’s zero-tolerance policy for underage drinking (0.02% BAC limit). Refusing a breathalyzer can derail college plans or employment, as suspensions linger on records.
How to Protect Yourself
Know Your Rights: You can refuse a breathalyzer, but weigh the consequences carefully.
Stay Calm: If pulled over, don’t argue or admit guilt—anything you say can be used against you.
Act Fast Post-Arrest: Use the 10-day permit to consult a DUI lawyer and request a DHSMV hearing.
Avoid Driving Impaired: The best defense is prevention—use rideshares or designate a sober driver.
Final Thoughts: Refusal Isn’t a Free Pass
Refusing a breathalyzer in Florida might seem like a clever way to dodge a DUI, but it’s a high-stakes move with guaranteed fallout. The 12-month license suspension, potential misdemeanor charges, and stronger DUI case often outweigh any short-term gain. The 10-day driving permit buys you time, but only if you act quickly to challenge the DMV or build a defense.
Whether you’re a young driver, a parent, or just navigating Florida’s roads, understand that DUI laws are unforgiving, and car hopping or impaired driving can lead to life-changing consequences. Stay informed, drive sober, and keep refusal as a last resort.
Mark D. McMann
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