In addition to any criminal court penalties, a driver who fails a breath test or refuses to submit to a breath test will face an automatic suspension of their drivers license. The suspension period will depend on the driver and how many DUIs or breath refusals they've had in the past. Even if the driver is later found not guilty of drunk driving, refusing a breath test will still result in an automatic license suspension.
Refusing to Submit to a Breath, Urine, or Chemical Test
Some drivers refuse to submit to a breath test. While you have no obligation to submit to roadside field sobriety exercises, refusing a breath or urine test has consequences for your driving privileges. Under Florida's “implied consent” laws, driving is considered a privilege. In exchange for being given a license to drive, drivers are considered to have given their consent to submit to a chemical (breath or urine) test if they are arrested for a DUI. Even if you have never explicitly given consent to submit to a breath or urine test, by driving in Florida, you have given your implied consent to submit to either breath or urine tests for the purpose of determining your blood alcohol content.
During a DUI arrest, the police are supposed to give the driver an implied consent warning. This includes notifying them that failure to submit to a breath test will result in the suspension of their driving privileges for a year for the first refusal, or 18 months for a second refusal. A second breath test refusal is considered a misdemeanor. Failure to submit to a breath test is admissible as evidence in a criminal proceeding.
Drivers License Suspension
After an arrest for drunk driving, the police officer will take away your drivers license and give you a “Florida DUI Uniform Traffic Citation.” This citation will act as your temporary drivers license for 10 days. After ten days, your license will be suspended by the Department of Highway Safety and Motor Vehicles (DHSMV).
During the license suspension period, part of the suspension will be deemed “hard time” with no driving allowed for any reason. After the hard time suspension, an individual can apply for a hardship license (business or employment reinstatement). A hardship license may allow you limited driving, including driving to and from school, work, or medical appointments.
The drivers license suspension periods and amount of “hard time” suspension will depend on the age of the driver, type of driver, number of DUIs, and number of prior breath refusals.
- Breath Test Over 0.08% BAC - 6 months suspension (30 days “hard time”)
- Breath Test Refusal - 12 months suspension (90 days “hard time”)
- Breath Test Over 0.08% BAC - 12 months suspension (30 days “hard time”)
- Breath Test Refusal - If the first offense was an over-the-limit breath test, 12 months suspension (90 days “hard time”). If the first offense was a breath test refusal, 18 months suspension (all 18 months “hard time”).
3rd or More Offenses:
- Breath Test Over 0.08% BAC - 12 months suspension (all 12 months “hard time”).
- Breath Test Refusal - If all prior offenses were over-the-limit breath tests, 12 months suspension (12 months “hard time”). If any prior offense was a breath test refusal, 18 months suspension (18 months “hard time”).
The legal limit for commercial drivers is 0.04% BAC, half that of other drivers 21 years of age or older. If a commercial driver refuses a breath test or has a breath test over the legal limit, they will lose their commercial drivers license for one year. If they refuse a second breath test, they will be permanently disqualified from commercial driving, with no hardship reinstatement allowed.
Drivers Under the Age of 21
Drivers under the age of 21 can be charged with a DUI with a blood alcohol level of 0.02% or higher. If their BAC tests at 0.05% or higher, their license will immediately be suspended. If lower than 0.05%, they will be given a temporary 10-day license before the suspension begins.
1st Under-21 Offense:
- Breath Test Over 0.02% BAC - 6 months suspension
- Breath Test Refusal - 12 months suspension
2nd or More Under-21 Offenses:
- Breath Test Over 0.02% BAC - 12 months suspension
- Breath Test Refusal - 18 months suspension
Should You Refuse the Breath Test?
Some drivers refuse to submit to a breath test because they are worried that the test will show they were over the legal limit. However, refusal to submit to a breath test can still be used as evidence against you in court. You can still be convicted for drunk driving even if the prosecutor does not have a breath test to show you were intoxicated. Even if you were not over the legal limit or had no alcohol in your system, refusing a breath test can lead to an automatic suspension of your license.
On the other hand, even with a breath test which shows a blood-alcohol level over the legal limit, there are still ways for your attorney to fight a DUI conviction. Breath testing devices are not perfect. If these devices are properly used, maintained, calibrated, and operated, they can give incorrect readings. Your attorney may be able to challenge the breath test results on multiple grounds to get that evidence suppressed or thrown out. In those situations, an inadmissible breath test may be better for your case than refusing a breath test.
Challenging Your Drivers License Suspension
You are able to challenge the automatic drivers license suspension by requesting an administrative hearing. However, you only have 10 days to request the DHSMV hearing. By challenging your suspension, you may also lose the chance to get a hardship license until your “hard time” suspension is over. That means no driving of any kind for 90 days after refusing a breath test. Talk to your Florida DUI attorney about whether you may want to challenge your drivers license suspension.
Reinstate Your License
After your license is suspended following a DUI or refusal to submit to a breath test, you will have to apply to have your license reinstated. This applies to hardship licenses as well as having your full driving privileges reinstated. If you are applying for a hardship license, you must apply to the Bureau of Administrative Review Office (BAR). If you reinstate your licenses after the full suspension period you may reinstate your license through your local drivers license office.
To get your license reinstated, you must take the required examination, pay an administrative fee, revocation reinstatement fee, and any license fee required. Additional requirements may apply, as laws change, and you should contact the BAR to learn what requirements are in effect at the time your reapply. If referred, you must show proof of enrollment or completion of DUI school and treatment. You may also be required to have an ignition interlock device installed in your vehicle. You must also show proof of insurance in the form of an FR-44 and continue to maintain it for 3 years after your license is reinstated.