Florida DUI: Refusal to Take a Blood, Breath or Urine Test

In Florida, if you get pulled over for a DUI and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

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Implied Consent

Florida law requires you to take a breath, blood, or urine test if you are arrested for a DUI. Florida’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your blood alcohol content (BAC) or for drugs. Also, you may be asked to take more than one test. If the officer first chooses a breath test, then he or she has the option to make you take an additional test, which you cannot refuse without penalty.

You could be arrested for a DUI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that the driver is in the car and can make it move. Even if the driver is asleep when the officer arrives on the scene, the potential that he or she could wake up and drive has been enough for a Florida court to decide that the driver had actual physical control. (To read more about the meaning of actual, physical control, see the case Griffin v. State 457 So.2d 1070 (1984)). 

Once you are arrested, the officer should tell you that if you refuse to take the test, your license will be suspended and that your refusal can be used against you in court. The officer should also tell you that if you have had your license suspended before for refusing a chemical test, then this subsequent refusal counts as a misdemeanor in addition to having your license suspended again.

You can read Florida’s implied consent law in the Florida Statutes Annotated 316.1932.

Refusing to Take the Test

 

1st Offense

2d Offense

3rd Offense

Refusal to take test

1 year license suspension

18 month license suspension

18 month license suspension

In Florida, you will lose your license for one year for your first refusal. For your second and any subsequent refusal, your license will be suspended for 18 months and you will face the additional consequences, such as time in jail, that come with committing a misdemeanor. 

In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, the state may administer the test if you are unconscious, even if you haven’t yet been arrested. Also, if you find yourself in a situation where an officer arrests you for a DUI but hasn’t given you a test, then Florida law says that you can ask for one. Once you ask, the officer has to give you a test.

The penalties for refusing to submit to a chemical test are found in the Florida Statutes Annotated 316.1932 and 775.082.

Should You Refuse to Take a Mandatory DUI Test in Florida?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In Florida, the consequences for refusal are milder than those for a DUI, but you could still go to jail if you have refused to take a test more than once. If you are convicted of a DUI, then you face hefty fines, jail time, and perhaps installation of an ignition interlock device on your car. Refusing the test does not guarantee that you won’t be convicted – you can still be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Florida or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

Additional Resources

Follow the links below for more information concerning DUI laws in Florida.

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