If you were pulled over for DUI in Florida and decided not to blow into the breathalyzer, you may now be wondering whether you made the right choice and what comes next. Many drivers believe that refusing the test will help their case by denying the state hard proof of blood alcohol concentration (BAC). The reality is more complicated.
Under Florida’s Implied Consent Law (Fla. Stat. §316.1932), refusal to submit to chemical testing comes with automatic penalties, including driver’s license suspension and, in some cases, additional criminal charges. Courts have also ruled that a refusal can be used against you at trial. At the same time, the legality of the stop and the arrest itself may dramatically change how a refusal plays out in court.
This article walks through what “refusal to blow” really means in Florida, the consequences of saying no, how courts have treated these cases, and what defenses are available if you find yourself in this position.
What It Means If You Refused to Blow in Florida
When Florida drivers talk about “refusing to blow,” they are usually referring to declining a breath test at the police station after being arrested for DUI. Under Florida law, refusal applies to any chemical test — breath, blood, or urine — requested after a lawful arrest for suspected drunk driving. It is different from refusing roadside field sobriety exercises, which drivers are not legally required to perform.
The critical point is that refusal only matters once an officer has placed you under arrest. At that point, the officer must read you Florida’s implied consent warning, advising that refusal will result in license suspension and, if it is not your first time refusing, a separate criminal charge.
Understanding Florida’s Implied Consent Law
Florida’s implied consent statute, §316.1932, says that anyone who operates a motor vehicle on Florida’s roads has already consented to submit to a chemical test of breath, blood, or urine if lawfully arrested for DUI. By driving in Florida, you give this “implied” consent in advance.
The law is strict. A first refusal carries a one-year administrative license suspension. A second or subsequent refusal not only carries an eighteen-month suspension but also becomes a first-degree misdemeanor under Fla. Stat. §316.1939, punishable by up to one year in jail and a $1,000 fine.
And refusal is not invisible at trial. In South Dakota v. Neville, 459 U.S. 553 (1983), the U.S. Supreme Court ruled that refusal evidence does not violate the Fifth Amendment and can be introduced in a criminal case. Florida courts have followed that rule, allowing prosecutors to argue that refusal suggests a “consciousness of guilt.”
Case Law on Refusal and Blood Tests
Refusal cases in Florida also intersect with national case law on blood testing. In Missouri v. McNeely, 569 U.S. 141 (2013), the Supreme Court held that police cannot automatically take blood without a warrant, absent exigent circumstances. Florida incorporated this principle into practice: unless a crash involves serious injury or death, officers generally need a warrant before drawing blood.
Florida’s own statutes make exceptions. Under Fla. Stat. §316.1933, if a DUI crash causes death or serious bodily injury, officers may require a blood test regardless of consent. That means refusal does not always prevent the state from obtaining BAC evidence.
DUI Consequences of Refusing to Blow in Florida
The immediate penalty for refusing a chemical test is administrative license suspension by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). On a first refusal, the suspension is twelve months. A second refusal extends that to eighteen months and adds a misdemeanor charge.
Even without a BAC number, refusal does not end the DUI prosecution. Prosecutors can still build a case with officer testimony, field sobriety exercises, dashcam video, and circumstantial evidence such as odor of alcohol or erratic driving. The refusal itself is admissible and juries may be instructed that they can consider it.
What If the Stop Was Unlawful?
An important wrinkle is the legality of the traffic stop itself. Under the Fourth Amendment, officers must have reasonable suspicion to stop you and probable cause to arrest you. If either is lacking, your attorney can file a motion to suppress, asking the court to exclude all evidence that flowed from the unlawful stop.
Consider the example of an officer who claims to have “paced” your vehicle at ten miles per hour over the limit but did not use radar. Florida courts allow pacing as a valid method of estimating speed, but only when done carefully and consistently. If pacing is sloppy or pretextual — meaning it looks more like an excuse to make a DUI stop than a genuine traffic observation — the stop may be invalid.
In State v. Geiss, 70 So. 3d 642 (Fla. 5th DCA 2011), the court held that evidence must be suppressed when an arrest lacked probable cause. If a stop or arrest is thrown out, the refusal that followed is also excluded. That means the jury may never hear about it.
However, It is important to understand that you cannot legally refuse just because you believe the stop was unlawful. Florida’s implied consent law still imposes penalties for refusal at the administrative level. The question of whether the stop was valid is decided later in court, not at the roadside.
DUI Defense Strategies After Refusing to Blow
There are multiple ways to challenge refusal charges in Florida:
- Unlawful stop or arrest: If the stop lacked reasonable suspicion or the arrest lacked probable cause, all evidence — including refusal — may be suppressed.
- Improper implied consent warning: If officers did not properly advise you of the consequences, the refusal may be inadmissible.
- Medical inability: Conditions like asthma or respiratory illness may explain why a driver could not provide a sample.
- Ambiguity: If the driver did not clearly refuse but was confused, silent, or misunderstood, the state may have trouble proving refusal.
- Machine or operator error: Malfunctioning equipment or improper procedures may undermine the implied consent process.
License Suspension and the 10-Day Rule
When you refuse, the officer will seize your license and issue a temporary driving permit. You have only 10 days from the date of arrest to request a DHSMV formal review hearing to contest the suspension. If you do not act within that window, your suspension goes into effect.
Even if you cannot avoid suspension, you may be eligible for a hardship license, which allows limited driving to work or school if you enroll in DUI school. A DUI lawyer can guide you through the hearing process and preserve your right to drive.
Should You Refuse to Blow?
Drivers often ask whether refusal is better than failing the test. The answer depends on the situation. For first-time offenders, refusal removes a direct BAC number from the state’s case, but it guarantees license suspension and can still be used as evidence. For repeat offenders, refusal is usually worse, because it carries harsher penalties and can be charged as its own crime.
The bottom line is that refusal is not a strategy. It is a choice with serious trade-offs, and once made, the consequences are largely out of your hands. What matters most is getting legal counsel immediately.
Why You Need a DUI Lawyer
If you refused to blow in Florida, you are facing a complicated legal battle on two fronts: the DHSMV administrative suspension and the criminal DUI prosecution. An experienced Miami DUI lawyer can:
- Challenge the legality of the stop or arrest.
- Contest the implied consent procedure.
- Represent you at the DHSMV hearing to fight suspension.
- Cross-examine officers and challenge refusal evidence.
- Negotiate reduced charges such as reckless driving.
With over 15 years of trial experience, Derrick George, Esq., has defended clients across Florida in DUI refusal cases and understands the procedural and evidentiary issues that make or break these cases.
Conclusion
Refusing to blow in Florida may feel like a protective measure in the moment, but the law imposes strict consequences under the implied consent statute. A first refusal means a one-year suspension; a second refusal could mean jail time. Prosecutors are allowed to use refusal evidence in court, and in some cases, they may still obtain a blood sample with a warrant.
At the same time, the validity of the stop and the arrest can be decisive. If the stop lacked probable cause, the refusal may never reach the jury. For these reasons, early, skilled legal representation is critical.
If you refused a breath test in Miami or anywhere in Florida, contact The Law Offices of Derrick George, Esq. today for a confidential consultation.
FAQs: Refusal to Blow in Florida
What happens if I refuse a breath test in Florida?
A first refusal results in a one-year license suspension. A second refusal leads to an 18-month suspension and a first-degree misdemeanor charge.
Can I still be convicted of DUI without blowing?
Yes. Prosecutors can rely on officer testimony, field sobriety results, and the refusal itself to prove impairment.
Can police force me to give blood in Florida?
If a crash causes death or serious injury, Florida law (§316.1933) permits compelled blood draws, often with a warrant.
What if the traffic stop was unlawful?
If the stop lacked reasonable suspicion or the arrest lacked probable cause, your lawyer can move to suppress all evidence, including refusal.
Is refusing better than failing the breath test?
Not always. Refusal avoids a BAC number but guarantees suspension and may add criminal liability for repeat offenders.
Do I need a lawyer if I refused to blow?
Yes. A lawyer can fight your suspension, challenge the stop, and build a defense strategy tailored to your case.
