Refusing a Breath Test in Florida: Is It a Crime Now?

Law as of October 26, 2026. First refusal has been a crime since October 1, 2025.

If you said no to the test, you may be scared you made things worse. This page gives you the plain facts: what changed, what the State has to prove, what it means for your license, and what happens next. You have 10 days from the date your notice was issued to act on your license. Our 10-day page has a countdown tool.

The short answer

Yes. Since October 1, 2025, a first refusal of a lawful breath or urine test is a crime in Florida. It is a second-degree misdemeanor. A second or later refusal is a first-degree misdemeanor.

"Charged with refusing" is not the same as "convicted." The State has to prove each part of the crime. An arrest is not a conviction.

Source: § 316.1939(1), Fla. Stat. (2026): a person who refuses after the required steps "commits a misdemeanor of the second degree for a first refusal or a misdemeanor of the first degree for a second or subsequent refusal." Ch. 2025-121, § 9, Laws of Fla. ("This act shall take effect October 1, 2025.") (laws.flrules.org/2025/121).

What changed? (then and now)

The change is known as "Trenton's Law."

Source: § 316.1939(1), Fla. Stat. (2026); ch. 2025-121, §§ 1, 4, 9, Laws of Fla. (approved June 5, 2025).

What does the State have to show?

For the refusal crime, the State must show all of these:

1. The officer had probable cause to believe you were driving or in actual physical control while impaired.
2. You were placed under lawful arrest for DUI.
3. You were given the license warning.
4. You were given the misdemeanor warning.
5. You refused after those warnings.

If one piece is missing, that matters.

Source: § 316.1939(1)(a)-(e), Fla. Stat. (2026).

What was the officer supposed to tell me?

Before asking for a breath or urine test, the officer must tell you two things:

1. Refusing will suspend your license for 1 year. It is 18 months if you had a prior refusal suspension or a prior boating refusal fine.
2. Refusing is a crime. It is a second-degree misdemeanor for a first refusal. It is a first-degree misdemeanor if you have a prior refusal suspension or fine.

At a license hearing, the hearing officer also checks whether you were told the license consequences of a refusal.

Source: § 316.1932(1)(a)1.a.-b.; § 316.1939(1)(c)-(d); § 322.2615(7)(b)3., Fla. Stat. (2026).

How bad can it be?

These are ceilings set by law, not predictions for any person.

Court costs and fees are extra.

Source: § 775.082(4)(a)-(b); § 775.083(1)(d)-(e), Fla. Stat. (2026).

What happens to my license?

A refusal brings its own license suspension, separate from the criminal charge.

You can ask for a review hearing. The hearing officer decides three things: Did the officer have probable cause? Did you refuse after being asked? Were you told the license consequences? The standard is "more likely than not."

You have 10 days from the date your notice was issued to ask for that review. See our 10-day page and the deep dive on license suspension hearings.

The criminal outcome does not change a refusal suspension.

Source: § 322.2615(1)(b)1., (7)(b), (8)(a), (14)(b); § 322.2616(2)(b)1., Fla. Stat. (2026).

Can the prosecutor tell the jury I refused?

Generally, yes. Florida law makes a refusal admissible in the criminal case. The statute says: "The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding."

Florida courts have allowed prosecutors to argue that a refusal shows "consciousness of guilt." That means the State may argue that the refusal suggests the test would have shown alcohol.

There are limits:

• Courts have reversed convictions where the State used the refusal to suggest the defendant had to prove their innocence.
• Courts have excluded a refusal where officers gave no implied-consent warning at all.

Whether and how the State may use a refusal depends on the facts and on how the warnings were given.

Source: § 316.1932(1)(a)1.a., Fla. Stat. (2026) (parallel language for urine at 1.b. and blood at (1)(c)).These decisions applied the admissibility sentence that remains in the statute; no published appellate decision applying the 2025 refusal crime was located, and this page makes no claim about one.

What about refusing a blood test?

The new refusal crime covers breath and urine tests. It expressly does not reach a blood test requested under the hospital or medical provision. A blood refusal still carries the license suspension, and the refusal can still be used as evidence.

Source: § 316.1939(1) (opening words "breath or urine") and (1)(b); § 316.1932(1)(c); § 322.2615(1)(a), Fla. Stat. (2026).

Is the roadside exercise the same thing as the breath test?

No. The roadside exercises (walking, standing on one leg, following a pen with your eyes) happen before arrest and are separate from the implied-consent breath, urine, or blood test. Florida's highest court has held that refusing them before arrest can be admitted at trial in some circumstances. It depends on the facts. Talk to a lawyer about yours.

Source: § 322.2615(2)(a), Fla. Stat. (2026).

What is "implied consent"?

By driving in Florida, you are treated as having agreed to a lawful breath or urine test after a lawful DUI arrest. In certain medical settings, you are also treated as agreeing to a blood test. A warning about this is printed on Florida licenses.

Source: § 316.1932(1)(a)1.a.-b., (1)(c), (1)(e)3., Fla. Stat. (2026).

Can I ask for my own test?

Yes. You may get an independent test at your own expense, in addition to the officer's test. The officer must not interfere. The officer must give you timely phone access to arrange it. Arranging and paying for it is on you.

You or your lawyer can also ask for "full information" about the officer's test. That covers the test type and procedures, the time, the numerical results, the operator's permit, and the last instrument inspection.

Source: § 316.1932(1)(f)3.-4., Fla. Stat. (2026).

Can I still get a hardship license after a refusal?

Possibly.

• First-time drivers. If you have never had a DUI administrative suspension, never had a CDL DUI disqualification, and never been convicted of DUI, the statute lets you ask for a business-purposes-only license without the 90-day wait, even after a first refusal. The catch: taking that license gives up your formal and informal review. Make that choice inside your 10 days.
• If you fight the suspension and lose, the wait before a hardship license is 90 days for a refusal. The clock starts when your last temporary permit ends.
• DUI school enrollment is required either way. Several things can block a hardship license, including a prior refusal suspension.

Read the full picture: Hardship license after a DUI.

Source: § 322.2615(10)(a); § 322.271(2)(a), (7), (7)(c), Fla. Stat. (2026) (§ 322.271(7) begins "Notwithstanding the provisions of s. 322.2615(10)(a) and (b)"); HSMV 72034 (Rev. 4/2026) (restricted license lasts "one (1) year for a Refusal to Submit to a Breath, Blood, or Urine Test").

If you hold a CDL, a refusal can also trigger a CDL disqualification. See DUI and your CDL.

Should I have refused?

We don't judge that. It is done. A refusal case is still a case, and it can still have defenses. The warnings you were given, the officer's steps, and the video all matter.

Things a lawyer looks at in a refusal case include:

• Was the implied-consent warning given, and was it complete?
• Was the arrest lawful, and was there probable cause?
• What does the video show about what was said and how?

Every case is different. No defense works in every case.

Source: § 316.1932(1)(a); § 316.1939(1); § 322.2615(7)(b), Fla. Stat. (2026).

Forms and links (official sites)

• HSMV 78065, review of suspension (Rev. 02/2018): flhsmv.gov/pdf/forms/78065.pdf
• HSMV 72034, Request for Eligibility Review (Rev. 4/2026): flhsmv.gov/pdf/forms/72034.pdf
• HSMV 78306, Application for Administrative Hearing (Rev. 4/2026): flhsmv.gov/pdf/forms/78306.pdf
• Check your license status: services.flhsmv.gov/DLCheck

Related pages

• Back to the DUI hub
• What to do in the first 24 hours
• The DUI 10-day rule
• Hardship license after a DUI
• DUI and your CDL
• License suspension hearings
• What the State must prove in a DUI
• If you are not a citizen, read this too: DUI and immigration

Call or WhatsApp: (305) 209-0384

Refused the test? You are not the first, and a refusal case can still have defenses. We will look at your papers with you. English or Spanish. 24 hours. Dennis Gonzalez Law, P.A. Our lead attorney is a former Miami-Dade prosecutor.

This page is general information, not legal advice for your case.

Law as of October 26, 2026; first refusal has been a crime since October 1, 2025. Last reviewed: October 26, 2026. Reviewed by the attorneys of Dennis Gonzalez Law, P.A.