If you’re pulled over for suspected DUI in Florida, the officer might ask you to take a breathalyzer test. But do you have to comply? The short answer is no; you can refuse. However, refusing a breath test comes with serious legal consequences.

So, should you refuse? What happens if you do? Let’s break down Florida’s implied consent laws, the risks of refusing a breath test, and the potential impact on your driving record and criminal case.

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

In Florida, when you get a driver’s license, you automatically agree to submit to chemical tests (breath, urine, and, under some circumstances, blood) if law enforcement suspects you of driving under the influence and you have been arrested or taken to a hospital. This is called implied consent, meaning that by driving in the state, you’ve already agreed to these tests in advance.

What Does This Mean in Practice?

If an officer has probable cause to believe you’re driving under the influence, they can request that you take a breathalyzer test. If you refuse, there are immediate penalties—whether you were actually intoxicated or not.

What Happens If You Refuse a Breathalyzer?

1. Automatic Driver’s License Suspension

• First refusal: Your driver’s license will be suspended for one year.
• Second (or subsequent) refusal: Your license will be suspended for 18 months, and you could face misdemeanor charges.

Even if you’re never convicted of DUI, the refusal itself still results in a license suspension under Florida law.

2. Your Refusal Can Be Used Against You in Court

Many people think refusing a breath test makes it harder for prosecutors to convict them of DUI. While it may eliminate direct BAC evidence, your refusal can still be used as evidence against you in court. Prosecutors will all this consciousness of guilt and will argue that you refused because you knew you were over the legal limit.

3. You May Still Be Arrested for DUI

Refusing a breathalyzer doesn’t mean you won’t be charged with DUI. In fact, unless you have been taken to a hospital for injuries, the request to provide a breath sample will happen after you have already been arrested before you are asked to give a breath sample. The officer will usually make a decision to arrest based on indicators of impairments such as slurred speech, the smell of alcohol, or poor performance on field sobriety tests—they can still arrest you.

Pros and Cons of Refusing a Breathalyzer in Florida

Pros of Refusing a Breath Test

• No BAC Evidence: Without a recorded blood alcohol concentration (BAC), the prosecution may have a harder time proving you were intoxicated. This could make it more difficult for them to secure a DUI conviction.
• Avoid Higher Penalties for Extreme BAC Levels: Florida imposes harsher penalties for DUI if your BAC is 0.15% or higher. If you refuse the test, there’s no way to prove your BAC was in that range.
• May Have a Stronger Defense in Court: Some defense attorneys can argue that the lack of a BAC reading creates reasonable doubt, especially if other DUI evidence is weak.

Cons of Refusing a Breath Test

• Automatic License Suspension: Even if you beat the DUI charge, you’ll still face a mandatory license suspension for refusing.
• Used as Evidence Against You: Prosecutors can argue that you refused because you were guilty. A jury might see this as a sign of intoxication.
• Can Still Be Convicted of DUI: If the officer has other evidence—such as erratic driving, failed field sobriety tests, or witness testimony—you can still be charged and convicted.
• Harsher Penalties for Repeat Refusals: If you refuse a breathalyzer after a prior refusal, you could face additional criminal charges on top of DUI penalties.
• Additional criminal charges: A second refusal is a crime itself, and you can receive up to 365 days in jail. This means that you should never refuse a second time. 

What If You Take the Test and Fail?

If you take the breathalyzer and your BAC is 0.08% or higher, you will be charged with DUI. However, even if your BAC is below the legal limit, you can still be arrested if the officer believes you are impaired based on your behavior.

• A DUI conviction in Florida carries severe penalties, including:
• License suspension (six months to one year)
• Fines ranging from $500 to $1,000 (higher for repeat offenses)
• Possible jail time
• DUI school and mandatory community service

Can You Beat a DUI Charge If You Refused the Breathalyzer?

Yes, but it depends on the details of your case. A skilled DUI defense attorney can challenge the arrest in several ways:

• Lack of Probable Cause: If the officer pulled you over without a valid reason, your case could be thrown out.
• Unreliable Field Sobriety Tests: These tests are subjective and can be challenged in court.
• Violation of Your Rights: If the officer failed to inform you of your rights or conducted the test improperly, your case could be dismissed.

Final Thoughts: Should You Refuse a Breathalyzer in Florida?

Refusing a breathalyzer is a gamble. While it may prevent law enforcement from obtaining direct BAC evidence, it automatically results in a license suspension and can still be used against you in court.

If you’ve been arrested for DUI, whether you took the test or refused, you need an experienced DUI defense attorney on your side. The right legal strategy can make all the difference in minimizing penalties, fighting the charges, and protecting your future.

Need Help Fighting a DUI Charge?

We’ve successfully defended clients facing DUI charges in Florida and know how to challenge breath test refusals. Contact us today for a free consultation, and let’s put your defense strategy in motion.

Call Glassman and Zissimopulos and our team of dedicated attorneys today. (352) 505-4515 or Toll-Free at (844) 787-2543. When you call, you will be able to speak with a lawyer. This is our commitment to you.