Being arrested for DUI in Florida has always carried serious consequences. But a recent change to Florida law means that refusing a lawful breath or urine test can create an entirely different problem. In some cases, a person arrested for DUI may now find themselves facing two separate criminal charges, along with an administrative driver’s license suspension.
Florida’s refusal laws changed effective October 1, 2025. A first qualifying refusal of a lawful breath or urine test can now result in a separate second-degree misdemeanor charge. A second or subsequent qualifying refusal can be charged as a first-degree misdemeanor.
For drivers who refuse testing after a DUI arrest, understanding that these are separate legal issues is important.
A DUI Charge and a Refusal Charge Are Not the Same Case
A DUI charge generally involves allegations that a person drove or was in actual physical control of a vehicle while impaired by alcohol, certain chemical substances, or controlled substances, or had an unlawful blood-alcohol or breath-alcohol level.
A refusal charge focuses on different conduct.
Under Florida law, a person can face a criminal refusal charge when certain legal requirements are satisfied, including that the officer had probable cause to believe the person was driving or in actual physical control while under the influence, the person was lawfully arrested for DUI, the required warnings were given, and the person then refused the requested lawful breath or urine test.
That means someone arrested for DUI who refuses testing may potentially have to defend against the underlying DUI charge as well as a separate criminal refusal charge.
What Happens After a First Breath or Urine Test Refusal?
Under current Florida law, a first qualifying refusal is a second-degree misdemeanor. If a person’s driving privilege has previously been suspended for refusing a lawful test, or certain other statutory conditions involving a previous refusal apply, a subsequent refusal can constitute a first-degree misdemeanor.
The change is significant because, before the law was amended, Florida generally required a prior qualifying refusal before a refusal itself became a criminal offense.
The refusal may also be used as evidence in a criminal proceeding. Prosecutors may attempt to use the decision not to provide a sample as part of their case, but a refusal does not automatically establish that a person was driving under the influence.
Like other aspects of a DUI investigation, the circumstances surrounding the request and alleged refusal should be carefully examined.
Your Driver’s License Creates a Third Issue
The criminal cases are only part of the problem.
Florida’s implied consent law also provides for an administrative driver’s license suspension following a refusal. A first refusal can result in a one-year suspension. A second or subsequent qualifying refusal can result in an 18-month suspension.
This administrative process is separate from the criminal refusal case. Florida law specifically provides that the outcome of an administrative proceeding concerning a driver’s license suspension does not determine the outcome of the criminal refusal charge, and vice versa.
As a result, someone arrested for DUI could simultaneously be dealing with a DUI prosecution, a separate criminal refusal charge, and an administrative driver’s license suspension.
Can a Florida Refusal Charge Be Challenged?
Being charged with refusal does not mean every element required by Florida law has been established.
The circumstances leading up to the alleged refusal matter. Questions may include whether the officer had the necessary probable cause, whether the DUI arrest was lawful, whether the requested test qualified under Florida law, whether the required warnings were properly given, and whether the driver’s actions actually constituted a refusal.
The underlying DUI case also requires its own analysis. Traffic stops, officer observations, body camera footage, field sobriety exercises, witness statements, and other evidence may all become important when determining how the DUI and refusal allegations can be challenged.
Facing a DUI and Refusal Charge in Florida?
A DUI arrest involving a breath or urine test refusal has become more complicated under Florida’s current law. What may appear to be a single DUI case can actually involve multiple proceedings with different consequences and legal issues.
If you have been charged with DUI and refusing a breath or urine test in Orlando or elsewhere in Florida, Katz & Phillips can review the circumstances of the arrest, the alleged refusal, and the driver’s license issues involved in your case.
