What Happens When You Refuse a Breathalyzer Test in Florida, and How to Defend Yourself Against a DUI Charge

If you've been arrested for DUI in Florida and you refused a breathalyzer test, you might be wondering what your next steps are. Refusing the test can feel like the right decision, especially when you're unsure about your BAC level. But does it hurt your case? Can you still fight the DUI charge? And why do you need a private attorney to help you navigate the aftermath of a refusal?

I've worked with many clients who faced these very questions. In Florida, refusing a breathalyzer test has serious consequences, but it's not an automatic conviction. Let me explain how Florida's laws handle breathalyzer refusals, the defenses that might apply in your case, and why hiring a private attorney is essential for protecting your rights.

What Florida Statutes Say About Breathalyzer Refusal

Florida has a law called "implied consent" under Florida Statutes § 316.1932. This law means that, by getting a driver's license, you automatically consent to submit to chemical testing—whether it's a breathalyzer, blood, or urine test—if law enforcement has probable cause to believe you are driving under the influence of alcohol or drugs. However, there's an important catch: you have the right to refuse, but refusing carries consequences.

Here's what the statute says:

Florida Statutes § 316.1932(1)(a):

"Any person who accepts the privilege of operating a motor vehicle... shall be deemed to have given his or her consent to submit to... a test of his or her breath for the purpose of determining the alcoholic content of his or her blood..."

But if you refuse a breathalyzer, Florida Statutes § 316.1939 kicks in, imposing specific penalties:

Florida Statutes § 316.1939(1)(a):

"Any person who refuses to submit to a test of his or her breath... shall be subject to a driver's license suspension for a period of one year for a first refusal, and 18 months for a second or subsequent refusal."

This means that if you refuse a breath test, you automatically face a mandatory license suspension. A first-time refusal leads to a one-year suspension, and if you've refused in the past, it's 18 months. The refusal can also be used as evidence against you in the DUI case itself. It's important to know that even if the breath test is refused, the prosecutor can argue that your refusal is evidence that you were attempting to hide the fact that you were intoxicated.

Can You Fight a DUI Charge After Refusing a Breathalyzer?

The simple answer is yes — you can still fight a DUI charge even if you refuse the breathalyzer. Refusal doesn't automatically mean a conviction, and there are several ways to challenge the evidence against you.

Here are some defenses that may apply:

  1. Challenging the Stop or Arrest - If the police didn't have a valid reason to stop you in the first place, or if they didn't have probable cause to arrest you for DUI, the case can be thrown out altogether. Even without a breathalyzer test, probable cause is required to justify a DUI arrest. If I can show that the officer didn't have valid reasons to pull you over or arrest you, your DUI charge could be dismissed.
  2. No Evidence of Impairment - A refusal to take the breathalyzer test is not evidence of guilt. It can't prove that you were impaired, only that you didn't submit to the test. So, if there is no other clear evidence that you were impaired—such as failing field sobriety tests, slurred speech, or erratic driving—the prosecution may not be able to prove DUI beyond a reasonable doubt.
  3. Illegal Detention or Search - If you were unlawfully detained or your rights were violated during the stop, any evidence gathered after that—including your refusal—can be challenged. I've had cases where my clients were stopped illegally, and the entire case fell apart as a result.
  4. Involuntary Refusal - In some cases, there might be reasons why you couldn't take the test. For example, if you were physically incapable of submitting to the test due to injury, medical conditions, or other factors, this could be a defense. I've worked with clients who had medical conditions that made it difficult or unsafe for them to provide a breath sample. In those cases, we fight the refusal penalty and work to show the court that the refusal was not intentional or voluntary.
  5. Errors in the Process - Florida law requires officers to properly inform you of the consequences of refusing the breathalyzer test. If you weren't told your rights or if the officer failed to follow the proper procedure, we can challenge the legality of the refusal. For example, if the officer didn't give you a chance to speak with an attorney or didn't inform you of the suspension consequences, the evidence may be compromised.

Real-Life Case: Winning a DUI Case Despite Breathalyzer Refusal

Here's an example from one of my cases. My client was pulled over for a minor traffic violation, and the officer immediately suspected he was under the influence. The officer asked him to take a breathalyzer test, but my client refused. The officer arrested him for DUI based on the refusal, but there was no additional evidence of impairment—no erratic driving, no failed field sobriety tests, and no visible signs of intoxication. The prosecutor thought the case was solid, but I immediately challenged the arrest and the refusal.

Here's how we won:

  • I filed a motion to suppress the arrest based on the lack of probable cause. There was no reason to suspect my client was impaired beyond the initial suspicion from the traffic stop.
  • I also argued that my client had a right to refuse, and that refusal wasn't evidence of guilt. I emphasized that the refusal was simply an exercise of his legal rights.
  • Finally, I pointed out that there was no other evidence showing my client was impaired. There was no failed field sobriety test, no alcohol odor, and no other significant signs of impairment.

The judge agreed, and the case was dismissed.

This is why hiring a private attorney early is critical. I was able to identify weaknesses in the case that the prosecution couldn't overcome. If my client had relied on a public defender or tried to handle it alone, this case might have gone differently.

Why You Need a Private DUI Lawyer After Refusing a Breathalyzer

After refusing a breathalyzer test, you may feel like the case is stacked against you, but that's simply not true. The refusal is just one piece of evidence. Without a lawyer, you may not have the legal tools to challenge the rest of the case.

Here's how a private DUI lawyer can help:

  • Experience with DUI cases: I understand the intricacies of Florida DUI law and how to handle refusals. I'll work with you to ensure your rights are protected.
  • Challenging evidence: I can scrutinize the officer's actions, the arrest process, and any other evidence that might not be as solid as it seems.
  • Mitigating consequences: Even if we can't get the DUI charge dropped, a skilled DUI lawyer can often negotiate a plea or reduce the penalties you face.

Without an experienced attorney like me, it's easy to miss important details that could change the outcome of your case. The stakes are high—a DUI conviction can affect your life for years. You need someone who can protect your interests and fight for the best possible outcome.

Refusing a breathalyzer test doesn't automatically mean you'll be convicted of DUI in Florida. There are several defenses that may apply, and with the right attorney by your side, you can fight the charge and protect your rights.

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.

FAQs – Refusing a Breathalyzer Test in Florida DUI Cases

Can I be convicted of DUI if I refused the breathalyzer test in Florida?

Yes, it's possible. However, refusal to take the breath test can't be used as direct evidence of DUI. The state can still proceed with charges, but they'll need other evidence—like field sobriety test results, witness testimony, or other signs of impairment—to support the DUI charge. A skilled defense lawyer can argue the weakness of that evidence.

What happens if I refuse a breathalyzer in Florida?

Refusing a breathalyzer test in Florida leads to mandatory license suspension—a one-year suspension for a first refusal, and 18 months for subsequent refusals. Additionally, refusal can be used as evidence against you in the DUI case itself. However, refusal does not automatically result in a conviction, and the case can still be challenged.

Can I refuse a breathalyzer test without consequences?

While you can refuse a breathalyzer test, there are legal consequences. As mentioned, Florida law imposes a driver's license suspension and uses the refusal as evidence. However, refusing the test may also prevent the police from collecting physical evidence that might have been used to prove your intoxication, which can sometimes work to your advantage.

Does refusing a breathalyzer test hurt my chances in court?

Refusing the test doesn't automatically hurt your case, but it can make it harder for your defense. Without the test results, the prosecution may have a harder time proving impairment, but they can still present other forms of evidence. Your lawyer can challenge the sufficiency of this evidence and work on getting the charge reduced or dismissed.

What should I do if I've refused a breathalyzer and been charged with DUI?

Contact a DUI defense attorney immediately. A private attorney will examine the evidence, challenge the validity of the arrest, and fight for the best possible outcome. The sooner you get legal help, the more options you have for reducing or dismissing the charges.

Can I get my license back after refusing a breathalyzer test?

Yes, but you must follow Florida's reinstatement process, including requesting a formal review hearing and potentially applying for a hardship license. A DUI defense lawyer can assist with this process and help you navigate the steps to getting your license back.

What if I have a medical condition that prevents me from taking the breathalyzer test?

If you have a medical condition that prevents you from taking the test (such as severe asthma or another respiratory issue), you should inform the officer immediately. If the officer refuses to accommodate your condition or ignores your explanation, a defense lawyer can challenge the arrest based on those violations.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Refusing a breathalyzer test doesn't automatically mean you'll be convicted of DUI in Florida. There are several defenses that may apply, and with the right attorney by your side, you can fight the charge and protect your rights.

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.