refusal to submit to dui testing
Former Prosecutor | Over 10 years of Experience | More than 40 Trials
If you have been arrested for DUI, you were likely asked to submit to a test of your breath, blood, or urine. A recent update to Florida law has drastically changed the consequences for refusing such a request.
As of October 2025, Florida’s DUI laws became significantly tougher with the enactment of Florida Statute 316.1939, which makes it a criminal offense to refuse to submit to a lawfully requested chemical test of your breath or urine.
Many drivers believe that refusing a breath or urine test could help them avoid providing the State with damaging evidence in a DUI case, and others have been told that they should always refuse, even if they do not believe that they are impaired.
However, under Florida’s new refusal law, that decision can now expose you to an additional misdemeanor criminal charge with separate penalties, and driver’s license consequences. Simply put, a single DUI arrest can now potentially lead to both DUI charges and a Refusal to Submit charge.
Attorney Ben Baxter understands how DUI refusal cases are investigated, prosecuted, and defended because as a prosecutor, he helped train law enforcement officers to properly conduct DUI investigations.
Refusal to Submit to DUI Testing Under Florida Law
To convict someone of Refusal to Submit to DUI testing under Florida law, the prosecutor must prove that:
- The person was lawfully arrested for DUI;
- That a breath or urine test was lawfully requested;
- That they were advised of the consequences of refusing the test requested; and
- They refused the requested test of their breath or urine.
Defenses to Refusal to Submit to DUI Testing
Each of these “elements” of a Refusal charge presents an opportunity for a skilled criminal defense attorney. Because the Refusal charge depends on strict compliance with constitutional protections and Florida’s Implied Consent Law, an effective strategic defense begins by scrutinizing every step of the DUI investigation, from reviewing the legality of the initial traffic stop to evaluating whether the officer had probable cause for arrest and complied with Florida’s Implied Consent law when requesting the breath or urine test.
The Traffic Stop
Police officers in Florida must have probable cause that you committed a civil traffic violation or reasonable suspicion of criminal activity in order to lawfully detain a driver for a traffic stop.
In reality, many traffic stops are based on a “hunch” that the driver is impaired. Experienced DUI defense attorney Ben Baxter reviews every traffic stop to find flaws in the officer’s actions and use them to ask the Court to exclude evidence, such as breath test results, that was obtained as a result of an illegal traffic stop.
The DUI Investigation
When officers ask a driver to exit their vehicle for a DUI investigation, the officer must have “reasonable suspicion” that the driver is under the influence of alcohol, controlled substances, or a chemical substance. Typically, officers will say that they smelled alcohol and that the driver had red, bloodshot, and glassy eyes.
Former prosecutor Ben Baxter knows how DUI investigations should be handled because as a prosecutor, he helped train officers to conduct them. He will analyze every report and every second of video footage to scrutinize the officers’ methods and tactics to develop a comprehensive defense strategy.
The Arrest
Florida law enforcement officers must have “probable cause” to arrest a driver for DUI. Officers are trained to make arrest decisions using the National Highway Traffic Safety Administration (NHTSA) manual. This includes instruction on how officers should conduct field sobriety exercises and what they should observe during the exercises to justify an arrest decision.
DUI defense lawyer Ben Baxter uses this manual against the prosecution to show that the exercises were improperly administered and that any conclusion drawn from them is unreliable.
The Breath Test
Florida’s Implied Consent law establishes strict legal procedures that law enforcement officers must follow when requesting a breath or urine test after a DUI arrest. These rules are not optional, and when an officer fails to follow them, the breath/urine test results may be challenged or even excluded from evidence.
In refusal cases, the legality of the breath test request is an essential element of the offense. Errors involving implied consent warnings or procedural compliance issues can create a powerful defense tool which may lead to the reduction or dismissal of charges.
Central Florida Justice founder Ben Baxter received special training as a prosecutor focusing specifically on dealing with issues with breath, blood, and urine testing in Florida. Now he uses that training to defend his clients facing refusal charges.
Successfully challenging a Refusal to Submit charge can also have a major impact on a DUI case. Florida prosecutors often attempt to use a refusal as evidence of “consciousness of guilt,” meaning that the prosecutor can argue that a person refused a test because they knew that they were guilty and knew what the test results would be. A successful defense of a Refusal charge may prevent the State from arguing consciousness of guilt at trial for the DUI charge, which may lead to a reduction in charges in the DUI case.
Penalties for Refusing to Submit to a Breath/Urine Test
A Refusal to Submit charge in Florida can carry serious consequences, including criminal penalties that may mirror those of the DUI charge, such as probation, jail, fines, a driver’s license suspension, and long-term damage to your criminal record.
Prosecutors may use a Refusal charge strategically during plea negotiations, increasing pressure on those charged with DUI and Refusal to accept a plea offer that may not be in their long-term best interest.
Because these cases often involve complex issues involving Florida’s Implied Consent law, traffic stops, DUI investigations, the legality of an arrest, and whether or not a refusal was legally valid. It is critical to speak with an experienced Florida DUI defense lawyer prior to making any decisions about your case.
A Former Prosecutor On Your Side
Central Florida Justice founder Ben Baxter is a former prosecutor and experienced DUI defense attorney who understands how DUI and Refusal cases are investigated, charged, and prosecuted. He has litigated hundreds of motions to suppress and has taken over 40 cases to trial. He knows how to challenge unlawful stops, identify constitutional violations in the DUI investigation, and evaluate the legality of a request for a breath or urine test.
One of the founding principles of Central Florida Justice is that the attorney-client relationship must be built on a foundation of trust and empathy. Every Central Florida Justice client has the ability to contact their attorney directly by phone, text, or email. And every client has access to the Central Florida Justice client portal, which provides instant access to evidence in their case, notes from the attorney, court dates, and more.
If you or someone you know has been charged with Refusal to Submit to Testing in Orlando or the Central Florida area, including Osceola, Lake, Polk, Seminole, or Brevard Counties, contact Central Florida Justice today for a free consultation or call/text (407) 561-1776 to speak directly with criminal defense attorney Ben Baxter.
