Refusal to submit to testing — first refusal
Florida Statute § 316.1939(1)
Summary verified against the 2026 Florida Statutes: October 7, 2026.
Quick Summary
A first qualifying refusal of a lawful breath or urine test is a second-degree misdemeanor. Establish DUI probable cause, lawful arrest unless the specified implied-consent exception applies, the lawful test basis/request, required suspension and criminal-penalty warnings, AND refusal after the warnings. A prior refusal is not required for this first-refusal track under current law. Record exact warnings and response; not every refusal of every test is criminal, and blood requests require separate analysis. A qualifying prior refusal suspension or boating-refusal fine invokes the separate first-degree repeat track; administrative and criminal proceedings remain independent.
Classification, Points & Penalties
Classification, Points & Penalties
- Category
- DUI / Implied Consent
- Type
- Criminal Traffic
- Civil / Criminal
- Criminal
- Offense Classification
- Misdemeanor
- Degree
- 2nd Degree
- Points
- 0
- Fine / Penalty
- Court determined; up to 60 days jail and/or $500 fine; costs may apply
Base fines are not the total payable amount. Costs, enforcement method, crash consequences, prior history, and court disposition can change penalties or points. A reported zero does not rule out license suspension or revocation.
Court & Enforcement
Court & Enforcement
- Mandatory Court
- Yes
- NTA Eligible
- Potentially — Rule 3.125; subject to exceptions and traffic-specific procedure
- Custodial Arrest
- Only when lawful arrest authority exists; NTA may be an authorized alternative
NTA means notice to appear. Eligibility is conditional; these fields do not independently authorize arrest. Confirm the exact statutory track, lawful arrest authority, traffic procedure, and agency policy.
Arrest authority guideCivil infractions resulting in death or serious bodily injury require a hearing under §318.19.
Offense Guidance
Offense Guidance
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.
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