Category: Traffic Offenses · Statute: F.S. 316.1939 · Source: Florida Legislature
Understanding DUI Breath Test Refusal in Florida
In Florida, when you obtain a driver's license, you give "implied consent" under state law to submit to approved chemical or physical tests—including a breath test—if you are lawfully arrested for driving under the influence (DUI). A DUI Breath Test Refusal occurs when a driver, after being lawfully arrested and informed of the implied consent warning by law enforcement, explicitly declines or fails to complete the breathalyzer test. Under Florida Statute Section 316.1939, this refusal triggers immediate administrative consequences handled by the Department of Highway Safety and Motor Vehicles (FLHSMV), independent of the criminal court process.
The legal consequences of a refusal escalate based on the driver's prior record. A first-time refusal results in an automatic one-year administrative driver's license suspension. However, if a driver has previously refused a breath, urine, or blood test, a second or subsequent refusal is classified as a first-degree misdemeanor under Florida law. This means the driver faces not only an 18-month administrative license suspension but also separate criminal charges that carry penalties of up to one year in jail and a $1,000 fine, entirely separate from the underlying DUI charge itself.
How Breath Test Refusal Affects Bail and Pretrial Release
Under Florida Statute Section 907.041, individuals arrested for DUI, including those with a breath test refusal, cannot be released on bail or recognizance until their blood-alcohol level is below 0.05 percent, or eight hours have passed since their arrest. For a second or subsequent refusal charged as a misdemeanor, judges at first appearance often view the refusal as non-compliance with state authority, which can lead to higher cash bail amounts or stricter pretrial release conditions, such as the mandatory installation of an Ignition Interlock Device or continuous alcohol monitoring transponders as a prerequisite for release.