A first refusal generally triggers a one-year administrative driver license suspension; a second or subsequent refusal typically yields an 18-month suspension, with a DHSMV hearing right if timely requested. A second refusal can be charged as a first-degree misdemeanor. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant. That is what separates Florida refusing a breathalyzer from a generic national summary. Read Fla. Stat. § 316.1932 before the background sections below. Florida's implied-consent law deems drivers to consent to breath, blood, or urine tests when lawfully arrested for DUI. Officers must inform the driver of the consequences of refusal under § 316.1932.
License suspension and administrative hearings
A first refusal generally triggers a one-year administrative driver license suspension; a second or subsequent refusal typically yields an 18-month suspension, with a DHSMV hearing right if timely requested.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
Criminal consequences of refusal
A second refusal can be charged as a first-degree misdemeanor. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Florida statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Refusal is admissible in the DUI prosecution and is commonly argued as consciousness of guilt.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Florida opinions for “refusal” and “implied consent.”
A concrete Florida scenario
Here is one way the Florida pieces fit together. Change any fact and the statute may point somewhere else.
A driver is arrested for DUI in Florida and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Fla. Stat. § 316.1932: A first refusal generally triggers a one-year administrative driver license suspension; a second or subsequent refusal typically yields an 18-month suspension, with a DHSMV hearing right if timely requested.
- Separate that track from the criminal case: A second refusal can be charged as a first-degree misdemeanor. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
- Ask whether the refusal can be argued to the jury: Refusal is admissible in the DUI prosecution and is commonly argued as consciousness of guilt.
- If the request is for blood rather than breath, apply the warrant rule: Breath tests are standard; blood may be taken with consent, a warrant, or under crash/exigent-circumstances rules in serious injury or death cases.
In Florida the refusal question is answered first by Fla. Stat. § 316.1932, then by the administrative deadline and the criminal case.
Breath tests versus blood tests
Breath tests are standard; blood may be taken with consent, a warrant, or under crash/exigent-circumstances rules in serious injury or death cases.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Florida opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Florida
Larmer v. STATE, DEPT. OF HIGHWAY SAFETY
Larmer v. STATE, DEPT. OF HIGHWAY SAFETY, 522 So. 2d 941 (1988)
…Sheriff's deputy, fully advised the defendant of Florida's Implied Consent Law, and asked the defendant if he would take a Breathalyzer test. The officer advised the defendant that he would lose his license for one year if he refused the test. The defendant stated that he would not take the test until he could speak with his employer or an attorney. Officer Collins construed t…
Practitioners open Larmer v. STATE, DEPT. OF HIGHWAY SAFETY when Florida implied consent / breathalyzer refusal turns on the distinction in this sentence: "Sheriff's deputy, fully advised the defendant of Florida's Implied Consent Law, and asked the defendant if he would take a Breathalyzer test. The officer advised the defendant that he would lose his license for one year if he refused the test." Do not lift it out of the facts the court was deciding.
Pardo v. State
Pardo v. State, 429 So. 2d 1313 (1983)
…ls to advise the accused of the suspension provision in the implied consent law. I read the statute by putting emphasis on the implied consent part and conclude that if consent is given then "implied consent" never becomes operative. If consent is not given and the warning is not given then the government cannot suspend the driving privileges. If consent is given then no harm c…
On implied consent / breathalyzer refusal, Pardo v. State speaks to the Florida dispute in this passage: "I read the statute by putting emphasis on the implied consent part and conclude that if consent is given then 'implied consent' never becomes operative. If consent is not given and the warning is not given then the government cannot suspend the driving privileges." The surrounding opinion shows how the court applied that language to the record.
State v. Polak
State v. Polak, 598 So. 2d 150 (1992)
…-3000 Rev. B1, Serial No. 3707, after being informed of the implied consent warnings set out in Section 316.1932(1)(a), Florida Statutes (1989), namely, refusal to take an approved chemical test would result in suspension of the person's license and use of his or her refusal as evidence at trial.[3] The test results ranged from .11 to .23 percent blood alcohol content. The indi…
Florida opinions such as State v. Polak are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Rev. B1, Serial No. 3707, after being informed of the implied consent warnings set out in Section 316." That is the language to brief; the rest of the decision supplies the procedural posture.
State v. Slaney
State v. Slaney, 653 So. 2d 422 (1995)
…uch a blood sample (1) constitutes a violation of Florida's implied consent law under Sections 316.1932(1)(c), 316.1933(1), Florida Statutes (1991), and (2) cannot otherwise be justified on the basis of the defendant's voluntary consent; accordingly, we affirm the order under review suppressing as evidence the results of the subject blood test. I The facts of this case, as foun…
Florida opinions such as State v. Slaney are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Florida's implied consent law under Sections 316.1932(1)(c), 316." That is the language to brief; the rest of the decision supplies the procedural posture.
Chu v. State
Chu v. State, 521 So. 2d 330 (1988)
…her to submit to a blood test at the scene. The Defendant's implied consent was read to her and Trooper Kozma also obtained a written consent from the Defendant for the blood test. Trooper Kozma testified that the reason that he opted for a blood test instead of a breathalyzer test was for the fact that the paramedics were already there and he thought that it would be the most…
Practitioners open Chu v. State when Florida implied consent / breathalyzer refusal turns on the distinction in this sentence: "The Defendant's implied consent was read to her and Trooper Kozma also obtained a written consent from the Defendant for the blood test." Do not lift it out of the facts the court was deciding.
State v. Riggins
State v. Riggins, 348 So. 2d 1209 (1977)
…)(a), Florida Statutes (1975), commonly referred to as the "implied consent law", provides that any person accepting the privilege of driving a motor vehicle in this state shall be deemed to have given his consent to submit to an approved chemical test of the alcohol content of his blood if he is lawfully arrested for any offense committed while driving a motor vehicle under th…
State v. Riggins is worth reading on Florida implied consent / breathalyzer refusal because the court put the point in its own words: ")(a), Florida Statutes (1975), commonly referred to as the 'implied consent law', provides that any person accepting the privilege of driving a motor vehicle in this state shall be deemed to have given his consent to submit to an approved chemical test of the alcohol content of h" Use that passage as the starting point, then read the facts that precede it.
Charles KURECKA, Appellant, v. STATE of Florida, Appellee; State of Florida, Appellant, v. James J. Power, Appellee
…what I’m assuming? A: A lawyer, yes. The sergeant read the implied consent law to Power and advised him of the consequences of refusing the test, including suspension of his license and admission of his refusal as evidence in any criminal proceeding. Sergeant Gray did not repeat his request for Power to take the breath test; however, he interpreted Power’s actions as a refusal…
Florida opinions such as Charles KURECKA, Appellant, v. STATE of Florida, Appellee; State of Florida, Appellant, v. James J. Power, Appellee are cited where implied consent / breathalyzer refusal is disputed. The court stated: "A: A lawyer, yes. The sergeant read the implied consent law to Power and advised him of the consequences of refusing the test, including suspension of his license and admission of his refusal as evidence in any criminal proceeding." That is the language to brief; the rest of the decision supplies the procedural posture.
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Susan NADER, Respondent; Department of Highway
…ndicated that the inves *707 tigating officer explained the implied consent law 1 to the driver and asked her whether she would submit to a “breath, blood, or urine” test. Because each woman refused, the Department sought to suspend each woman’s driver’s license for a period of one year. See §§ 316.1932(l)(a)(l)(a), 322.2615(1), Fla. Stat. (2007). Both Ms. Nader and Ms. Mclndoe…
Florida opinions such as DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Susan NADER, Respondent; Department of Highway are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Because each woman refused, the Department sought to suspend each woman’s driver’s license for a period of one year. See §§ 316.1932(l)(a)(l)(a), 322.2615(1), Fla. Stat. (2007). Both Ms. Nader and Ms." That is the language to brief; the rest of the decision supplies the procedural posture.
Key takeaways
- Primary authority: Fla. Stat. § 316.1932.
- Administrative hit: A first refusal generally triggers a one-year administrative driver license suspension; a second or subsequent refusal typically yields an 18-month suspension, with a DHSMV hearing right if timely requested.
- Criminal exposure: A second refusal can be charged as a first-degree misdemeanor.
- Evidence: Refusal is admissible in the DUI prosecution and is commonly argued as consciousness of guilt.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Implied consent in Florida
Florida's implied-consent law deems drivers to consent to breath, blood, or urine tests when lawfully arrested for DUI. Officers must inform the driver of the consequences of refusal under § 316.1932.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Florida appellate opinions.
Frequently asked questions
What happens if I refuse a breathalyzer in Florida?
A first refusal generally triggers a one-year administrative driver license suspension; a second or subsequent refusal typically yields an 18-month suspension, with a DHSMV hearing right if timely requested. A second refusal can be charged as a first-degree misdemeanor.
Is refusal a separate crime in Florida?
A second refusal can be charged as a first-degree misdemeanor. Birchfield permits criminal penalties for breath refusal; blood draws for criminal punishment generally require a warrant.
Will the prosecutor tell the jury I refused?
Refusal is admissible in the DUI prosecution and is commonly argued as consciousness of guilt.
Do I need a warrant for a blood draw?
Breath tests are standard; blood may be taken with consent, a warrant, or under crash/exigent-circumstances rules in serious injury or death cases. See also Birchfield and McNeely linked above.