An Analysis of Whether a Person Arrested for DUI Should Take or Refuse the Breath Test

The question more people ask me in my capacity as a Tampa DUI and Criminal Defense Attorney is whether a person should take the breath test if they are stopped for Driving Under the Influence, DUI.   To Blow or Not to Blow, that is the question.  The answer is not an easy one.

Some think you should never take the breath test when arrested for DUI. Traditionally, my answer has been “It Depends” on how much you have had to drink and on whether you have previously refused to take a breath test after a DUI arrest. Florida Law changed a few years ago to make a Second Refusal a crime and again in October 2025, the Florida Legislature made it a crime to refuse the breath test any time one is arrested for DUI. This makes things very complicated.

All refusals are a crime.  A first-time refusal is a second-degree misdemeanor, and a second refusal is a first-degree misdemeanor. However, taking the breath test is also providing evidence the State can use to prosecute you for DUI. As an officer of the Court, all lawyers are officers of the Court, I cannot counsel anyone to commit a crime, so I will talk about this issue without giving you advice on whether you should refuse to take a breath test. Instead, I will tell you what happens under each scenario.

There are consequences for refusing to take a breath test or a blood test in the State of Florida:

• Refusing to take a Breath, Blood or Urine test after being arrested for DUI results in both civil and criminal penalties.  Civilly, a first-time refusal to take a breath test results in an immediate one-year suspension of your driving privilege.  If it is your second time refusing to take the breath test after being arrested for DUI, the suspension is 18 months, and you will not be eligible to obtain any type of hardship license.  On the Criminal Side, a first-time refusal is now a second-degree Misdemeanor, and a second-time refusal is a first-degree misdemeanor.  If it is your first refusal, you will be eligible to obtain a temporary driving permit or hardship license that will allow you to drive for work and other necessities.  However, if you have a prior refusal on your record, you will not be eligible for a hardship license.  As stated above, if a second refusal suspension sticks, you will not be able to drive for any reason for an 18-month period.
• A Prosecutor will use your refusal to take a breath or blood alcohol test against you at trial in a courtroom.  The prosecutor will jingle a set of car keys in the air, throw them into a conveniently located garbage can and tell the Jury “The Defendant knew he was drunk and would rather lose his driving privilege for one year or for 18 months than to let you know his alcohol level.”  This is a convincing argument.  With the two relatively new criminal statutes for refusing the breath test, the prosecutor will tell the jury that you would commit a crime of refusing the breath test in order to hide your alcohol level, with a goal of trying to beat the DUI charge.
• In fact, the only reason I can think of to refuse to take the breath test is to avoid building a case against you for the DUI.

Given these consequences, you might think you should always take the breath test.  Not so fast, my friend.  Even though the consequences of refusing a breath or blood test are significant, there are other factors that mitigate these consequences, and there are also consequences to taking the breath or blood test.

• First and foremost, a very high alcohol breath test result can make it next to impossible to win your DUI case.  An argument to a Jury that your alcohol level was twice the legal limit is devastating, and extremely difficult to overcome.
• If you take the breath or blood test, everyone will know your alcohol level.  If it is significantly high, a Prosecutor will not want to make a favorable plea offer during the negotiation phase of the case.  Knowing that anyone can look at the file and see the breath test results, the prosecutor will not want to be seen as weak on the enforcement of DUI offenses.
• If your alcohol level is above 0.15, your DUI will be an Enhanced DUI.  This means the minimum fine will increase from $500 to $1,000, and that you will be required to install an ignition interlock device on your vehicle for a minimum of 6 months.  These enhancements are greater if you have a prior DUI conviction.  If you refuse the breath test, the State Attorney generally has no way to prove your alcohol level is above .15, so you cannot be charged with an enhanced DUI.
• If you take the breath test and your alcohol level is above .08, you will lose your privilege to drive for 6 months anyway.  No one is going to tell you this during the investigation.  Refusing the test will cost you an additional 6 months of suspension if your level is going to be above the legal level of .08.  Of course, it will also result in you being charged with an additional crime for refusing to take the breath test.
• If you have never been arrested for or charged with a DUI, the 6 month or 12-month suspension will not mean you are not able to drive.  You will be eligible to obtain a temporary driving permit to drive for necessities during the length of the suspension.  This option is not available to someone that has been previously arrested for or charged with DUI.  Keep in mind that you will have only 10 days to make this election after your arrest.  Accordingly, you should call me at your earliest convenience to discuss how to handle the suspension.
• Finally, in some jurisdictions, there are programs for first-time DUI offenders that will allow a person arrested for DUI to plea to a reduced charge of Reckless Driving under some circumstances.  One of the circumstances in Hillsborough County is that the alcohol level be below .20.  If the breath test is refused, a first-time offender may be eligible to plea to the reduced charge of Reckless Driving and the second-degree misdemeanor for refusing to take the breath test instead of being convicted of DUI.

Has your opinion changed yet? There are 3 very important factors you must consider when deciding whether To Blow or Not to Blow.

• How much have you had to drink?  Do you think you will blow over .20?  Do you think you might blow below the legal limit of .08?  if you are going to blow below the legal limit or close to it, do yourself a favor and take the breath test.
• Is this the first time you have been arrested or charged with a DUI?  If you have a prior arrest, you will not be eligible for programs where the State Attorney’s Office might allow you to reduce the charge to Reckless Driving.  Also, the consequences of a second or third DUI conviction are greater, so it might be more important to you to not let the State know your alcohol level.  Again, if you think you will blow below the legal limit or close to it, you should definitely take the breath test.
• Do you have a prior breath, blood or urine test refusal?  If you do, a second refusal will not only be a crime, but it will subject you to an 18-month driver license suspension with no hardship license.  That means you will not be allowed to drive for any reason for 18 months.

General Rules:

• If you have never refused to take a breath, blood or urine test and you have had a lot to drink, you should consider refusing to take a breath or blood test.  However, keep in mind that this is a second degree misdemeanor crime under Florida Law.
• If you have a prior refusal and you cannot survive for 18 months without driving, you should strongly consider taking the breath test to avoid the 18-month suspension.  However, if your alcohol level is extremely high, you will likely lose the Criminal DUI case.  Depending on the circumstances, the penalties for the DUI might not be as bad as the 18-month suspension.  If you have only one prior DUI arrest that was more than 5 years ago, then you should probably blow to avoid the 18-month suspension.  A second DUI more than 5 years after a first conviction will result in you losing your driving privilege for no more than 12 months and you will likely be eligible to obtain a hardship license during most of that time period.  However, if you have 2 prior convictions, a third conviction has more significant penalties.
• In all circumstances if you have not had very much to drink, perhaps 2 beers, you should take the breath or blood test.  It will prove you are under the legal limit.
• If you have no chemical or controlled substances in your system, like cannabis, cocaine, anti-depressants, opiates, and the like, and you are asked to take a urine test, take the test.

These are some general guidelines, but the answer to the question is not absolute and is almost never an easy consideration.

My best advice to someone that is going to be drinking alcohol and driving is to plan ahead.  Don’t drink and drive.  There really is no excuse these days.  With Uber and Lyft available to take you home, it does not make sense to jeopardize your freedom and your driving privilege for $10 to $20.  If you are like me, you don’t want to leave your car in the parking lot of a bar or in Ybor City.  That is why you should take Uber or Lyft from your home at the beginning of the night.  This strategy will keep you from making poor judgments later when you have had too much to drink.

If you or someone you know has been arrested or charged with DUI in the Tampa Bay Area, you should call my office to obtain legal advice and representation that has been tested over the years.  It might surprise you to know that many DUI criminal charges are reduced to Reckless Driving.  It takes a good lawyer to be able to review your case to find the legal flaws in the case.  Sometimes there are no flaws in the case, but a good lawyer can present your case to the Assistant State Attorney handling the case and convince the Assistant State Attorney that the charge should be reduced.

Anthony S. Arena is a former Prosecutor and has been practicing law in the Tampa Bay area for over 38 years.  Anthony has handled many DUI cases in Hillsborough County, Pinellas County, Dade City and in the surrounding areas.  Anthony’s relationship with Assistant State Attorneys in these jurisdictions can help you if there is an issue that needs attention or if you need the hair to be split in your favor.

Let my experience work for you.  If you have any questions about this blog, please let me know in the comments or call or email my office.

Arena Law Firm, P.A.