Do I Have to Take a Breath Test If I’m Pulled Over in Florida?

Understanding Your Rights and the Serious Consequences of Refusing a DUI Breath Test in Florida

If you're pulled over in Florida and the officer asks you to take a breath test, the decision you make in that moment can have serious consequences. I've represented hundreds of people accused of DUI across the state, and this is one of the first questions I get: "Do I have to take the breath test?" The answer depends on the circumstances of the stop, the evidence the officer claims to have, and your history. I'll explain what the law says, what penalties you might face, and why it's so important to have a private defense attorney protecting your rights from the very beginning.

Florida's Implied Consent Law: What It Means for You

Florida has a law called implied consent, found in Florida Statutes § 316.1932. It means that if you drive in Florida, you're automatically considered to have given your consent to a chemical test if lawfully arrested for DUI. This includes a breath, blood, or urine test.

Statute text – § 316.1932(1)(a)1.a.:

"Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is… deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath… for the purpose of determining the alcoholic content of his or her blood or breath…"

So technically, yes, you gave your "consent" when you started driving in Florida. But you still have the right to refuse a breath test. That refusal, however, comes with real consequences.

If this is your first refusal, the DMV will suspend your license for one year. If you've refused before, it becomes a criminal offense under Florida Statutes § 316.1939.

Statute text – § 316.1939(1)(a):

"It is unlawful for a person who has refused to submit to a lawful test… and whose driving privilege has been previously suspended for a prior refusal… to refuse to submit to a lawful test… after being advised that the refusal is a misdemeanor."

This means if you have a prior refusal on your record and you refuse again, you can be charged with a first-degree misdemeanor, punishable by up to one year in jail and a $1,000 fine.

Why You Still Have the Right to Say No

Even though you gave implied consent, Florida law recognizes your right to refuse a test. The officer must read you a refusal warning, which informs you that refusing may lead to license suspension and possible criminal charges. This warning is part of what's called Florida's DUI Refusal Protocol.

As your private defense attorney, one of the first things I examine is whether the officer followed proper procedure. If the warning wasn't read properly, or if the stop wasn't lawful to begin with, your refusal might be thrown out, and we may be able to challenge any suspension or charges that followed.

Why You Should Never Make This Decision Without Legal Advice

Whether or not to submit to a breath test is not a one-size-fits-all decision. If the stop was based on weak evidence, and you don't show clear signs of impairment, refusing may give the prosecution less to use against you. But if you've previously refused or had prior DUI convictions, refusal may make things worse.

When clients come to me early, before formal charges are filed, I can review the dashcam footage, bodycam recordings, and the officer's sworn report. A public defender often doesn't get involved until charges are already filed. At that point, critical time and evidence may be lost. As your private attorney, I can challenge the refusal itself, the lawfulness of the stop, and the arrest that followed.

Real Case Example: Breath Test Refusal Thrown Out, DUI Dismissed

A client came to me after being arrested in Collier County for DUI. She had refused the breath test, and the officer alleged she was swerving and had alcohol on her breath. She had no prior DUI convictions but had refused a test several years earlier.

The prosecution charged her with misdemeanor refusal and DUI. Her prior refusal made this a criminal case with up to one year in jail. We immediately obtained the dashcam footage. What we found was that the officer never read the refusal warning in full, and her driving was not erratic—it was a brief lane change without signaling.

We filed a motion to suppress the refusal and challenged the basis for the stop. The judge granted our motion. With the refusal and traffic stop thrown out, the State had no admissible evidence to move forward. All charges were dismissed.

Had she waited for a public defender, that footage might not have been reviewed before her arraignment, and the charges could have stuck. This case proves the value of private legal defense early in the process.

Additional Statutes That Apply to Refusal and DUI Cases

Beyond implied consent, several Florida laws come into play when dealing with a breath test refusal:

• Florida Statute § 322.2615 allows for the administrative suspension of your license immediately upon refusal.
• Florida Statute § 316.193 outlines the criminal penalties for DUI convictions, which can be enhanced if you refused to provide a breath sample.
• Florida Statute § 90.803(8) is part of Florida's evidence code, and we often use it to challenge the admissibility of breath test results based on errors in how they were collected or stored.

Every case is different. The officer's conduct, the reason for the stop, your history, and how the refusal was handled all matter. As a private defense lawyer, I break down each element and build a defense tailored to your case. You're not just another file number to me.

What Happens After You Refuse the Breath Test

If you refuse the test, you will likely be arrested and issued a Notice of Suspension. You have 10 calendar days from the date of your arrest to request a formal review hearing with the Florida Department of Highway Safety and Motor Vehicles (DHSMV).

This is separate from the criminal case. If you miss the 10-day deadline, your license will be suspended automatically for one year (first refusal) or 18 months (second refusal).

As your private attorney, I will immediately request that hearing on your behalf. It gives us the opportunity to cross-examine the arresting officer and possibly stop the suspension from taking effect. The hearing is also a valuable way to gather early evidence and lock the officer into testimony that may help us in court.

Defenses We Use to Fight DUI Refusal Cases

We've successfully defended breath test refusal cases using the following strategies:

• Improper Warning: If the officer didn't properly advise you of the consequences of refusal, the refusal may be excluded from evidence.
• Unlawful Stop: If the traffic stop lacked reasonable suspicion, we can move to suppress all evidence that followed.
• Medical Conditions: Some clients have medical conditions that make them unable to perform breath tests properly. If you were unable rather than unwilling to submit, that's a powerful defense.
• Involuntary Refusal: If you didn't understand what was happening due to confusion, anxiety, or language barriers, we can argue that the refusal wasn't voluntary.

These defenses require careful review of reports, footage, and background. Public defenders don't have the same time or resources to dedicate to these investigations. That's one of the biggest reasons people choose private counsel like me.

Why You Should Never Face a DUI Refusal Case Alone

Even a first-time DUI with a refusal can result in a one-year license suspension, fines, probation, and a criminal record. A second refusal carries jail time, a longer suspension, and the possibility of being charged as a habitual traffic offender. If you drive for work or care for your family, losing your license can devastate your life.

The stakes are simply too high to go without an experienced private attorney. I help clients across the entire state of Florida protect their records, their freedom, and their futures. The sooner we act, the better our chances.

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.

Frequently Asked Questions (FAQs)

Can I refuse a breath test in Florida without breaking the law?

Yes, you can refuse, but that refusal triggers automatic penalties. Even though Florida's implied consent law says you gave your consent by driving, you still have the right to decline the test. For a first refusal, your license will be suspended for one year. For a second refusal, you can be charged with a criminal offense.

Will I go to jail just for refusing the breath test?

Not for your first refusal, unless it's part of a DUI conviction. But a second refusal is a misdemeanor punishable by up to a year in jail. Whether you're charged criminally depends on your history and the circumstances of the arrest. We can often negotiate to reduce or dismiss the charge.

Can the officer force me to take a breath test?

No, unless you're involved in a crash causing serious injury or death, in which case the officer can request a blood test under certain conditions. For standard DUI stops, breath tests cannot be forced, but refusing comes with consequences.

Is it better to take the test or refuse it?

That depends on the case. If you've been drinking heavily, refusing might prevent the prosecutor from having hard evidence of your blood alcohol level. But refusal carries its own penalties. I can review the evidence and advise on the best course of action in your specific situation.

How soon after refusing a breath test should I hire an attorney?

Immediately. You only have 10 days to challenge the administrative suspension. After that, your license is suspended automatically. The earlier you contact me, the better chance we have to protect your license and prepare a strong defense.

Can the police use my refusal against me in court?

Yes. The prosecution can argue that your refusal suggests you were trying to hide intoxication. However, we often challenge that argument by showing other reasons for the refusal, such as confusion, fear, or prior bad experiences. If the officer didn't follow protocol, the refusal may not be admissible.

What if I were physically unable to blow into the machine?

If you have asthma, COPD, or other conditions that prevent a sustained breath, we can present medical evidence showing the refusal was not voluntary. In some cases, the officer may have had the option to offer an alternative test, like urine or blood.

Will a refusal affect my job?

If your job requires a valid license or involves driving, yes, a refusal-related suspension can impact your employment. That's why we act quickly to request a hearing and, if possible, secure a hardship license so you can continue working.

What is a hardship license, and can I get one after refusing the test?

A hardship license allows you to drive for work, school, or essential needs while your regular license is suspended. After your first refusal, you may be eligible, but you must complete DUI school and apply through the DHSMV. I help clients apply as soon as the 10-day window opens.

Can I get the charges dropped if the officer didn't read me the warning?

Possibly. If the officer failed to properly explain the consequences of refusing the test or didn't follow the DUI refusal protocol, we can file a motion to suppress the refusal and seek dismissal of charges tied to it. Proper legal representation makes this argument stronger and more effective.

Contact Musca Law 24/7/365 at 1-888-484-5I'm For Your FREE Consultation

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.