Breath Test Refusal

Proven Miami DUI Attorneys – (305) 330-1360

When you are pulled over on suspicion of a DUI, it is likely that you will be asked to take a breath test, also known as a Breathalyzer. This test analyzes your breath for alcohol, and provides a reading which can be used to determine if your blood alcohol content (BAC) is higher than the legal limit. Many drivers refuse to consent to a test, which is surprising. In accordance with Florida law, refusal to submit to a breath test may be used against you in court to show a “consciousness of guilt.” Your driver’s license may also be suspended for one year after your refusal.

If you are arrested for a DUI, contact our Miami DUI lawyers at Hager & Schwartz, P.A. today.

Our DUI attorneys can help you fight your DUI charges and protect your license, even if a breathalyzer says that your BAC is more than the legal limit. Our top-rated team has handled thousands of cases and have helped protect the rights of our clients. Call our offices to find out how we can help you.

What is Implied Consent?

You may have heard of the term “implied consent” when it comes to DUI testing, but you may not understand what it means. By possessing a valid Florida driver’s license, drivers give their consent to chemical or physical DUI tests. Your consent isn’t something that is granted at the time of the traffic stop, but rather when the driver gains their license, hence the term “implied.” It is assumed that you have accepted the terms of DUI testing when you gained your license.

Test Refusal & License Suspension

Assuming that your DUI stop and arrest were performed lawfully, the arresting officer will legally be obligated to suspend your driver’s license for 1 year for your first refusal. For subsequent refusals, your license will be suspended for 18 months each time. You may also face misdemeanor charges, which can result in jail time.

If your license is suspended, you may fight the suspension at an administrative hearing with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). The hearing must be requested within 10 days of your license suspension. If you succeed at the hearing, your driver’s license suspension will be set aside. If you are not successful in defending your driving privileges, you will be forced to serve a 90-day hard suspension before you are eligible for a business-purpose-only license. If you waive your right to the hearing, you will not be able to defend your license, but you will be able to immediately apply for a business-purpose-only license.

A business-purpose-only license is a limited driving permit. If your full driver’s license is suspended, this permit can allow you to drive to and from specific locations, such as your work, religious services or gatherings, grocery shopping, or school. In order to be eligible for this license, you must have proof of enrollment in a DUI school and pay the required DHSMV fees for the application.

Florida Pre-Trial Diversion Program & Breath Test Refusal

Florida offers a program to first-time offenders called a pre-trial diversion program. This program offers new offenders the opportunity to reduce their penalty by performing community service, attending DUI school, or taking a Victim’s Awareness Program. Your charges will most likely be dropped after you have completed the program, but you may still have to pay fines or fees.

If, however, you refuse to take a breath, physical, or other chemical tests, you become ineligible for the pre-trial diversion program. The program offers a considerably lesser sentence than you would be able to bargain in court, so it is important to remember this when you are asked to take a breath test as a first-time offender.

Should You Submit to a Breath Test?

If you are pulled over on suspicion of a DUI, it is expected that you will cooperate fully with the arresting officer. If you fail to cooperate, you can expect that there will be penalties. However, there are many variables that should be considered when building your defense. Breathalyzer machines cannot distinguish between mouth alcohol and alcohol from the air in your lungs. If you have had a single drink, you may register as having a high BAC, even when you are far from intoxicated.

Your DUI attorney has a better chance of successfully defending you in a criminal trial that they do if you have refused a breath test, since refusing a breath test can be used against you in court as a confession of guilt. There are many issues with a breath test that may be argued against, but the refusal of a test will be far more difficult for your lawyer to defend you.

Get Help with Your DUI Charges from Experienced Miami DUI Attorneys – (305) 330-1360

At Hager & Schwartz, P.A., we are ready to begin your defense immediately. We know that it is crucial to move quickly to begin your defense and protect your license. Our team of Miami DUI lawyers can help represent you at your DHSMV administrative hearing as well as your DUI hearing in criminal court. Our Miami attorneys are well-versed with the local court system and judges, and we can use this familiarity to help shape your case effectively. Our award-winning team has decades of experience handling DUI cases, and we are available to take your call 24/7, even on weekends.

Begin your defense today! Contact our firm by calling (305) 330-1360 to request a free consultation.

former prosecutors


  • Hager & Schwartz, P.A. Thank you John for giving me back my life
  • Hager & Schwartz, P.A. John Hager is someone of high integrity
  • Hager & Schwartz, P.A. Mr. Schwartz made the miracle happen
  • Hager & Schwartz, P.A. Brett Schwartz is one of the best attorneys
  • Hager & Schwartz, P.A. I was lucky to have Mr. Schwartz as my lawyer
  • Hager & Schwartz, P.A. I would absolutely recommend him to anyone
Prev Next

Start Planning Your Defense

    • Please enter your name.
    • This isn't a valid phone number.
      Please enter your phone number.
    • This isn't a valid email address.
      Please enter your email address.
    • Please make a selection.
    • Please enter a message.
Put Us On Your Side