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Pre-arrest and post-arrest breath test refusals in Florida 

On Behalf of | Feb 21, 2024 | Drunk Driving

Aspiring young motorists learn in driver’s education courses that driving under the influence (DUI) is treated as a serious offense that can result in significant consequences regardless of where in the U.S. someone happens to be driving. If a law enforcement officer suspects that someone is impaired while driving, they may pull them over and request that they submit to a breath test.

Breath tests measure blood alcohol concentration (BAC). The more someone has had to drink, the higher their BAC will rise before it comes down again as time passes and the individual stops drinking. While a law enforcement officer can make an impaired driving arrest even if someone’s BAC isn’t above the legal limit – perhaps because their erratic driving served as enough evidence for the officer to develop probable cause that the driver was drunk at the wheel – a breath test that registers above the legal limit can inspire a per se drunk driving arrest. 

Pre-arrest breath test refusals

Before an arrest, law enforcement may request a driver suspected of DUI to submit to a preliminary breath test, often using a portable device. This pre-arrest test is typically used to establish probable cause for an arrest. In Florida, refusal to submit to this preliminary test can be considered under the totality of circumstances leading to an arrest but does not carry the same statutory penalties as refusing a post-arrest breath test. With that said, refusal at this stage can still influence the officer’s decision to arrest and may be used as evidence of impairment in court.

Post-arrest breath test refusals

The legal consequences of a refusal become more significant following an arrest for suspected DUI. Under Florida’s “Implied Consent Law,” drivers have implicitly agreed to submit to chemical testing (including breath, blood and urine tests) for impairment simply by holding a Florida driver’s license. After an arrest, refusal to submit to a breath test can lead to immediate administrative penalties, including a license suspension. For a first-time refusal, the suspension period is typically 12 months. A second or subsequent refusal can lead to an 18-month suspension and is classified as a misdemeanor.

Furthermore, post-arrest refusal can be used as evidence of guilt in a DUI proceeding. Additionally, Florida law allows for enhanced penalties for those convicted of DUI who refused the breath test, including mandatory ignition interlock devices and increased fines.

Defense opportunities

It is generally inadvisable to refuse a post-arrest breath test, as it may be possible to successfully challenge breath test results without incurring automatic penalties for refusal. But, regardless of what situation a driver finds themselves in, seeking legal guidance to explore defensive strategies to DUI charges is always an (unquestionably good) option. 


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