Refusal to Submit to DUI Testing
Refusing a lawful breath or urine test after the required DUI grounds and warnings.
Florida Statute
§ 316.1939
Refusal to Submit to DUI Testing
Verified against the 2026 Florida Statutes: September 16, 2026
Quick Summary
A lawful breath/urine refusal charge requires DUI probable cause, lawful arrest unless the specified implied-consent exception applies, the required suspension and criminal-penalty warnings, and refusal after the request and warnings. Under current law, a first qualifying refusal is also criminal; a qualifying prior refusal suspension or boating-refusal fine supports the enhanced track. Document the lawful test basis, exact warnings, response, and prior record. This provision does not make every refusal of any test criminal; blood requests and the test-specific implied-consent rules require separate analysis.
Summary verified against the 2026 Florida Statutes: October 1, 2026.
Summary sources
Classification Matrix
Use this as a quick classification reference. Specific facts, statutory circumstances, and charging allegations may affect the applicable result.
First qualifying refusal
F.S. 316.1939(1)
All statutory predicates and warnings required.
Second or subsequent qualifying refusal
F.S. 316.1939(1)(d)-(e)
Verify the qualifying prior suspension or BUI refusal fine and give the corresponding warning.
Elements of the Offense
Elements of the Offense
Elements marked AND are cumulative. Elements marked OR identify statutory alternatives; one applicable alternative must be established when that theory is charged. Conditional elements apply only to the identified statutory track.
- Element 1AND — Required
AND — all applicable requirements
The officer had probable cause to believe the defendant drove or was in actual physical control of a motor vehicle in Florida while under the influence as required by the statute.
Plain language: Prove this requirement and any alternatives stated within it.
- Element 2AND — Required
AND — all applicable requirements
The defendant was lawfully arrested for DUI, unless the test request qualified under section 316.1932(1)(c).
Plain language: Prove this requirement and any alternatives stated within it.
- Element 3AND — Required
AND — all applicable requirements
The defendant received the required one-year or eighteen-month license-suspension warning.
Plain language: Prove this requirement and any alternatives stated within it.
Jury Instructions
Jury Instructions
Instruction 28.13
Refusal to Submit to Testing — Driving Under the Influence
Use the instruction amended June 12, 2026; it includes the first-refusal criminal warning. Older six-element repeat-only versions do not reflect current law.
View Official InstructionVerified against the official instruction source: September 16, 2026
Important Definitions
Important Definitions
Qualifying refusal history
A prior license suspension for refusing a lawful breath, urine, or blood test, or a prior fine under 327.35215, affects the warning and repeat-refusal track.
Additional Notes
Additional Notes
Quick Reference
This criminal refusal section concerns breath or urine, not a current blood-test refusal. Administrative and criminal dispositions are independent. Use the approved current warning.
Classification
Current law criminalizes a first qualifying refusal; prior refusal history increases the degree. Consult the classification rows for the exact charged track; prove the additional facts for any enhancement.
Official Source
Verified against the 2026 Florida Statutes, section 316.1939, on September 16, 2026. Apply the law effective on the incident date; the five-year frequency analysis is not a substitute for current charging requirements.