Should You Refuse the Breathalyzer in Florida?
You’ve been out with friends, had a few drinks, and now you’re watching those blue and red lights flash in your rearview mirror. The officer approaches your window, runs your license, and eventually asks the question that trips everyone up: will you blow into the breathalyzer?
For years, a lot of people in Florida operated under the same informal advice passed around at backyard barbecues and sports bars: just refuse. Lose your license for a year, sure, but don’t hand the state a hard number to use against you. That advice made a certain amount of strategic sense under the old law. It doesn’t anymore. As of October 1, 2025, Florida changed the game entirely, and anyone still following that old advice could walk away from a single DUI stop facing two separate criminal charges instead of one.
Pulled Over on Suspicion of DUI? The Stakes Just Got Higher.
Florida’s new breathalyzer refusal law means one traffic stop can now produce two criminal charges. If you’re facing a DUI, a refusal charge, or both, don’t wait to get help. Call John Guidry at (407) 423-1117 right now.
What Changed: Trenton’s Law
Florida passed House Bill 687 — lawmakers named it “Trenton’s Law” — effective October 1, 2025. The legislature named the law after Trenton Stewart, an 18-year-old college football player killed in 2023 when a repeat DUI offender struck his car while traveling over 100 miles per hour in the wrong direction. His family worked with the Florida Legislature to pass one of the most significant overhauls of DUI enforcement in the state’s history.
The change that matters most for everyday drivers is this: refusing a lawful breath or urine test after a DUI arrest is no longer just an administrative matter. Under the amended Florida Statute § 316.1939, a first-time refusal now carries a separate criminal charge, a second-degree misdemeanor punishable by up to 60 days in jail and a $500 fine. A second or subsequent refusal escalates to a first-degree misdemeanor, which carries up to one year in jail. Those criminal penalties stack on top of the one-year administrative license suspension that has always applied to a first refusal.
What That Means in Practice
Under the old law, the worst case for refusing a first-time breath test was a one-year license suspension through the DMV, with no criminal record attached to the refusal itself. That calculation gave defense attorneys some room to work with. A driver who refused removed the hardest piece of evidence from the state’s case, took the license hit, and fought the DUI on the merits of the officer’s observations.
That calculation no longer works. A driver who refuses now faces two separate criminal charges from the same traffic stop: the DUI itself under Florida Statute § 316.193, and the refusal under § 316.1939. The prosecution gets to use the refusal as evidence of “consciousness of guilt” at trial, arguing the driver declined because they knew they’d fail. And the driver now carries the risk of a misdemeanor conviction on the refusal charge entirely independent of whether the DUI charge goes anywhere.
The Warning Requirement — And Why It Matters for Your Defense
Florida law requires officers to warn you of the criminal consequences of refusal before they request the test. That warning has to include the new criminal penalty under Trenton’s Law, not just the old license suspension language. If an officer fails to give the correct, complete warning, that procedural gap can become a real defense to the refusal charge. Courts have consistently required implied consent warnings to cover the actual consequences the driver faces, and the updated consequences now include a criminal conviction.
This is one of the first things I look at in any refusal case. The officer has a script to follow, and every deviation from it is an opening.
What You Should Do If Asked to Blow
The honest answer after October 1, 2025, is that refusing no longer carries a clear strategic advantage for most first-time defendants. Blowing over .08 gives the state powerful chemical evidence. Refusing now gives them a separate criminal charge plus that consciousness-of-guilt argument. Neither path is clean, and anyone who tells you otherwise is oversimplifying a complicated situation.
What I can tell you is this: the moment you get pulled over on suspicion of DUI, your most important move is to call a lawyer. Florida law doesn’t require officers to let you consult with an attorney before deciding whether to take the breath test, and the implied consent warning doesn’t pause while you make phone calls. But if you still have time before that moment arrives, use it. And if that moment has already passed and you’re now facing charges, call my office and let’s go through exactly what happened.
If You Want More Related Content
I’ve also written about the DUI diversion agreement, which has become even more important under Trenton’s Law since it’s now often the only way to get both the DUI and the refusal charge dismissed at the same time.
Read: https://jgcrimlaw.com/articles/induction-a-weak-form-of-knowledge/
John’s Takeaways
- Trenton’s Law (HB 687) took effect October 1, 2025. Florida now makes refusing a breath or urine test a separate criminal offense, even for first-time offenders.
- A first refusal is a second-degree misdemeanor, carrying up to 60 days in jail and a $500 fine, on top of the one-year license suspension that still applies.
- One traffic stop can now produce two criminal charges: the DUI under § 316.193 and the refusal under § 316.1939.
- Officers must warn you of the new criminal consequences before requesting the test. A defective warning can open the door to a defense on the refusal charge itself.
- The old “just refuse” advice no longer holds. The calculation has changed completely, and both paths out of a DUI stop now carry serious risks worth understanding before you’re ever in that situation.
Facing a DUI or Refusal Charge? Let’s Talk.
Whether you blew or refused, the outcome of a DUI case under Florida’s new law depends heavily on what happened before, during, and after that stop. I’ve been handling DUI cases in Central Florida since 1993, and I represent clients across Orange, Seminole, Osceola, Lake, Brevard, and Volusia County.
Give my office a call and let’s go through exactly what happened.
John Guidry — (407) 423-1117
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
John Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.