A refusal carries its own license suspension, and a second refusal is a crime in its own right. But implied consent only applies when the request was lawful, and that is exactly where a refusal case is won.
Call 904-383-7448By driving in Florida you agree, under the implied-consent law in section 316.1932, Florida Statutes, to submit to a breath, blood, or urine test when lawfully arrested for DUI. Refusing a lawful breath test triggers an administrative license suspension of one year for a first refusal and eighteen months for a second.
A second refusal is also a separate crime under section 316.1939. But implied consent applies only when the request is lawful, so the lawfulness of the stop, the arrest, and the warning is the heart of the defense. You still have ten days to fight the suspension. Call 904-383-7448.
Florida's implied-consent statute, section 316.1932, says that anyone who accepts the privilege of driving on Florida roads has, by that act, agreed to submit to an approved chemical or physical test of breath, blood, or urine when lawfully arrested for DUI. The key word is lawfully. The obligation to test is not triggered by the stop, or by a suspicion, or by the officer's hunch. It is triggered by a lawful arrest, after which the officer must read the implied-consent warning that tells the driver the consequences of refusing. When the warning is given and the driver still says no, the refusal carries the consequences the statute spells out. When any link in that chain is missing, the foundation for the refusal falls apart.
A refusal sets off the administrative side of a DUI case under section 322.2615. The Department of Highway Safety and Motor Vehicles suspends the license for one year on a first refusal and eighteen months on a second. That suspension is separate from anything that happens in the criminal case, and it runs on its own ten-day clock. Within ten days of the arrest you must demand a formal review hearing to contest the suspension or make the election that lets you keep driving on a hardship permit. The refusal can also be used against you in the criminal DUI case, where the State will argue that you refused because you knew you would fail. That argument has answers, but they have to be raised.
A first refusal is not, by itself, a crime. A second refusal is. Under section 316.1939, a driver who refuses a lawful breath, blood, or urine test after having previously had a license suspended for an earlier refusal commits a first-degree misdemeanor. That means a second refusal carries its own potential jail time and fine, entirely apart from the underlying DUI. Because the crime depends on a valid prior refusal suspension, the records of that earlier suspension matter, and so does whether the earlier refusal was itself lawful. The prosecution has to prove the prior, and that proof is not always clean.
The single most important question in a refusal case is whether the test was lawfully requested. If the traffic stop lacked a valid reason, or the arrest was not supported by probable cause, then there was no lawful arrest, and without a lawful arrest the implied-consent obligation never arose. In that situation the refusal and its license suspension can be set aside, and the second-refusal crime, which depends on a lawful request, cannot be proven. Even where the arrest was valid, the implied-consent warning must be read accurately and completely; a garbled or misleading warning can render a refusal involuntary. Graham Syfert concentrates on the scientific and procedural details of DUI cases, including the precise sequence the State has to follow before a refusal counts against you.
Related: DUI Defense overview and First DUI.
Under section 316.1932, refusing a lawful breath test brings a one-year suspension for a first refusal and eighteen months for a second. You still have ten days under section 322.2615 to demand a review hearing or elect a hardship permit.
A first refusal is not itself a crime, though it triggers a suspension and can be used as evidence. A second refusal is a separate first-degree misdemeanor under section 316.1939 when the driver was previously suspended for a prior refusal.
Yes. Implied consent applies only when the test is lawfully requested, which depends on a lawful arrest and a proper warning. If the stop or arrest was unlawful, or the warning was flawed, the refusal and its consequences can be challenged. The outcome depends on the facts.
The call is free and confidential. Whether it is a traffic citation or a felony, the sooner a defense begins, the more can be done. Graham W. Syfert answers his own phone.
Call 904-383-7448Graham W. Syfert, Esq., P.A. · Jacksonville, Florida
Serving Duval, Clay, Nassau, and St. Johns Counties