How the New 2025 Law Makes Refusing a Breath or Urine Test a Second-Degree Misdemeanor and Why You Need a Florida DUI Defense Attorney
Understanding Florida’s new criminal test refusal law
As a Florida DUI Defense Attorney, I’ve handled countless DUI cases where the most critical decision happens before a person even steps into a courtroom, whether to submit to or refuse a chemical test. Until recently, refusing a breath or urine test after a DUI arrest in Florida led only to an automatic driver’s license suspension under Florida’s Implied Consent Law. But beginning October 1, 2025, under House Bill 687, a first-time refusal is now classified as a second-degree misdemeanor.
This change marks a major shift in Florida’s approach to DUI enforcement. For decades, prosecutors and law enforcement could penalize refusals administratively but not criminally unless it was a second refusal. Now, even a first refusal can result in criminal prosecution, fines, and possible jail time.
I’ve seen firsthand how a single decision made in panic—often on the side of the road, under stress—can spiral into serious consequences. This new law raises the stakes even higher for drivers who are unfamiliar with their rights.
The law: Florida’s Implied Consent Statute and new criminal penalty
Under Florida Statute §316.1932, every driver in Florida implicitly consents to submit to an approved chemical or physical test—such as breath, urine, or blood—if lawfully arrested for DUI. The purpose is to determine the presence of alcohol or controlled substances.
The statute states:
“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 or physical test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if lawfully arrested for any offense allegedly committed while the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages.”
Previously, a first refusal resulted in a one-year license suspension under the Florida Department of Highway Safety and Motor Vehicles (DHSMV) rules. A second refusal became a misdemeanor under §316.1939. However, the new law, effective October 1, 2025, makes a first refusal a second-degree misdemeanor, punishable by up to 60 days in jail and a $500 fine, in addition to administrative suspension.
This means drivers now face both criminal and administrative penalties for the same act.
Florida Statute §316.1939 – Refusal to submit to testing
Here’s the statutory text relevant to the refusal offense:
Florida Statute §316.1939(1):
“It is unlawful for a person who has been arrested for a violation of s. 316.193 to refuse to submit to a lawful test of his or her breath, urine, or blood as provided in s. 316.1932 or s. 316.1933.”
§316.1939(2):
“A person who refuses to submit to a lawful test of his or her breath, urine, or blood commits a misdemeanor of the second degree.”
§316.1939(3):
“The refusal to submit to a lawful test of his or her breath, urine, or blood is admissible into evidence in any criminal proceeding.”
The key takeaway is that refusing a test no longer means just losing your license—it now means facing a criminal record.
Why this change matters
Many drivers believed refusing a breath test could prevent prosecutors from obtaining solid evidence of intoxication. While that may have once been true strategically, the state legislature closed that loophole. Now, a refusal can be used as evidence of consciousness of guilt in a DUI prosecution, and it’s its own crime.
If you’re convicted of refusal, that record can follow you for years. It can affect background checks, employment, insurance rates, and professional licenses. For students or professionals—like nurses, teachers, or commercial drivers—the collateral damage can be devastating.
This is why having an experienced Florida DUI Defense Attorney is so important. You need a lawyer who understands how to challenge the legality of the stop, the arrest, and the alleged refusal itself.
Real case example: unlawful refusal dismissed
A client in Pinellas County was stopped for swerving late at night. The officer claimed to smell alcohol and asked for a breath test. My client, nervous and unfamiliar with the process, hesitated and asked to call an attorney. The officer treated the hesitation as a “refusal.”
We challenged the case on the basis that the officer never properly explained the consequences of refusal, as required by law. Under §316.1932(1)(a)1.a, an officer must clearly inform a driver that refusal will result in license suspension and can be used as evidence in court. The video showed the officer cutting my client off mid-question and not fully readingthe warning.
After filing a motion to suppress the alleged refusal, the court agreed that the refusal was not valid because the statutory warning was not properly given. The entire charge was dismissed.
That client was spared from both the administrative suspension and a criminal conviction. Cases like these demonstrate how crucial it is to examine every procedural detail.
Defenses to refusal charges
Each refusal case is unique, and a skilled defense depends on analyzing the specific facts and procedures. Common defenses I use include:
- Improper traffic stop: If the stop was not based on reasonable suspicion, all evidence, including the refusal, can be suppressed.
- Unlawful arrest: A refusal is only valid if the arrest was lawful. If officers lacked probable cause, the refusal cannot stand.
- Failure to inform of consequences: Officers must inform the driver of the implied consent consequences; if they fail, the refusal is invalid.
- Ambiguous or unclear refusal: Confusion, medical issues, or equipment malfunction can be misinterpreted as refusal.
- Lack of lawful request: The officer must follow approved methods and use certified testing equipment.
- Coerced or involuntary refusal: If threats, misinformation, or unclear communication occurred, it may invalidate the refusal.
An attorney can identify these procedural flaws and use them to suppress evidence or have the case dismissed entirely.
The penalties for first-time refusal
Under the 2025 amendment, penalties for a first-time refusal include:
- Second-degree misdemeanor conviction
- Up to 60 days in county jail
- Up to $500 fine
- Driver’s license suspension for one year
- Mandatory probation or community service in some cases
- Possible ignition interlock device upon reinstatement
Beyond the immediate penalties, having a criminal record for test refusal can affect insurance rates, professional standing, and background checks.
Related DUI statutes that may apply
- §316.193 – DUI offense itself, outlining the penalties for impaired driving.
- §316.1932 – Implied consent law, establishing consent to chemical testing.
- §316.1939 – Refusal to submit to testing (now criminalized for first refusal).
- §322.2615 – Administrative suspension procedures for license revocation.
- §775.082 and §775.083 – Sentencing and fines for misdemeanors.
Together, these laws create a complex web of administrative and criminal consequences. Without experienced legal counsel, defendants can face multiple penalties from different agencies at once.
Why having a private defense attorney matters
Public defenders handle a high volume of cases, often leaving limited time to investigate procedural errors in DUI stops. A private attorney can dedicate the necessary time to scrutinize bodycam footage, cross-examine the arresting officer, and identify potential due process violations.
When I take on a case, I immediately file discovery motions, demand the arrest video, and review the implied consent procedures. Many times, small technical violations—like improper equipment calibration or missing timestamps—can make the state’s evidence inadmissible.
A private Florida DUI Defense Attorney also works proactively to protect your driving privileges by contesting the administrative suspension at a DHSMV hearing, which must be requested within 10 days of arrest. This step is critical, and missing it can cost your driving privileges for a full year even if your criminal case is later dismissed.
How the new law changes DUI defense strategy
The criminalization of first refusals changes the entire defense landscape. In the past, some attorneys might have advised clients that refusal could minimize DUI evidence. Now, that same action adds a criminal charge.
This makes it essential to fight both the refusal and any related DUI charge aggressively. A thorough defense may include:
- Challenging the legality of the traffic stop
- Reviewing officer training and certification records
- Inspecting calibration and maintenance logs for the breathalyzer
- Interviewing witnesses or gathering surveillance footage
- Filing motions to suppress unlawfully obtained evidence
By addressing every element of the prosecution’s case, we can often secure a reduction or dismissal of charges.
The long-term consequences of a criminal refusal
A refusal conviction may not seem as serious as a DUI, but it carries similar long-term risks. It appears on your criminal record, affects background checks, and can be used as prior evidence if you are ever arrested for DUI again.
Insurance companies often treat refusal convictions as equivalent to DUI convictions, which can triple premiums. For professionals—especially those holding commercial licenses, healthcare credentials, or government positions—a criminal refusal can trigger disciplinary reviews or loss of certification.
Florida DUI 1st Refusal Defense FAQs
What does the new Florida law, effective October 1, 2025, say about first refusals?
The new law makes a first refusal to take a breath or urine test after a lawful DUI arrest a second-degree misdemeanor. Previously, only second refusals were criminal. Now, even one refusal can lead to criminal prosecution, jail time, and a permanent record.
Can I still lose my driver’s license if I refuse the test?
Yes. In addition to the criminal penalties, the Florida DHSMV automatically suspends your driver’s license for one year for a first refusal and 18 months for a second. You must request a formal hearing within 10 days of your arrest to contest the suspension.
Is it better to take or refuse the test?
There’s no one-size-fits-all answer. Refusing can prevent the state from obtaining a breath or urine result, but under the new law, it also adds a criminal charge. If the test result would be extremely high, refusal may still be a strategic option, but the risks are greater than ever. Consult with a DUI defense attorney immediately after any arrest.
What are my defenses if I am charged with refusing a test?
Defenses include proving the officer lacked probable cause for the arrest, failed to give proper implied consent warnings, or that your refusal was not clear or intentional. Technical or procedural errors can lead to dismissal.
Will a criminal refusal affect my record permanently?
Yes. A conviction will appear on your record and cannot be expunged. However, if your case is dismissed or adjudication is withheld, you may be eligible to seal your record under Florida law.
How soon should I contact a Florida DUI Defense Attorney after arrest?
Immediately. You have only 10 days to challenge your driver’s license suspension and begin protecting your record. The earlier your attorney intervenes, the better your chances of identifying procedural errors that could lead to dismissal or reduction of charges.
Call Musca Law for your free consultation with our Florida DUI Defense Attorney
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with DUI, test refusal, and other traffic-related crimes. We are available 24/7/365 at 1-888-484-5057 for your free consultation.
We have over 35 office locations throughout Florida, serving clients in Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, and throughout the Florida Panhandle.
If you’ve been accused of refusing a breath or urine test, you now face not just license suspension but criminal charges. Let me fight to protect your record, your license, and your future.