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Kissimmee DUI Refusal Defense
Florida's New DUI Refusal Law
Until October 1, 2025, refusing a breath or urine test after a first DUI arrest in Florida was mainly a driver's license problem. That changed with the law known as "Trenton's Law" (Chapter 2025-121, Laws of Florida). Under section 316.1939, Florida Statutes, refusing a lawful breath or urine test is now a crime, even the first time.
Penalties for Refusing a Breath or Urine Test
• First refusal: a second-degree misdemeanor, punishable by up to 60 days in jail and a $500 fine.
• Prior refusal: a first-degree misdemeanor, punishable by up to one year in jail and a $1,000 fine, if your license was previously suspended for a refusal or you were previously fined for refusing a test under Florida's boating-under-the-influence law.
• Your license: a separate administrative suspension of one year for a first refusal, or 18 months if you have a prior refusal suspension.
• At trial: the State may tell the jury that you refused and argue that it shows "consciousness of guilt."
The refusal charge is filed in addition to the DUI charge. The two are separate, and each has to be defended on its own.
What the State Has to Prove
A refusal conviction is not automatic. The State must show that:
1. The officer had probable cause to believe you were driving or in actual physical control of a vehicle while under the influence;
2. You were placed under lawful arrest for DUI;
3. You were properly warned that refusing would lead to a license suspension and is a crime; and
4. After that warning, you refused to submit to a lawful breath or urine test.
Each of these elements is a place to look for a defense. Officers in Osceola and Orange County had to change the implied consent warning they read when the law changed. A warning that is outdated, incomplete or misread can undermine the charge.
Common Defenses in Refusal Cases
• The traffic stop was not lawful, or there was no probable cause for the DUI arrest.
• The implied consent warning was missing, incomplete or out of date.
• What the officer called a refusal was really confusion, a language barrier, a medical problem, or a request to speak with a lawyer.
• The breath instrument was unavailable or not working, so there was no lawful test to refuse.
• The body-camera or dash-camera video does not match the arrest report.
The 10-Day Deadline for Your License
A refusal also triggers an administrative suspension through the Florida Department of Highway Safety and Motor Vehicles (DHSMV), separate from the criminal case. You have only 10 days from the arrest to request a formal review hearing. At that hearing, the officer can be questioned under oath, which often helps the criminal defense as well.
Frequently Asked Questions
Is refusing a breath test a crime in Florida for a first offense?
Yes, for refusals on or after October 1, 2025. A first refusal of a lawful breath or urine test is a second-degree misdemeanor.
Does the new law apply to blood tests?
The new criminal penalty applies to refusing a lawful breath or urine test. Blood draws are governed by different rules and usually come up after a crash involving serious injury or death.
Can I refuse roadside field sobriety exercises?
Yes. Roadside exercises are voluntary in Florida, and declining them is not a crime. The refusal law concerns chemical tests requested after an arrest.
Can a refusal charge be dismissed or reduced?
Often, depending on the stop, the arrest, and how the warning was given. Every case turns on its own facts.
Talk to a Former Prosecutor
Chad Seibel is a former prosecutor who now defends people charged with DUI and refusal in Kissimmee, Orlando and across Central Florida. Call or text 407-846-8008 any time for a free consultation. Office visits are by appointment only.