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Refused a Breath, Urine, or Blood Test After a Florida DUI Arrest?
If you refused a breath, urine, or blood test after being arrested for DUI in Florida, your driver’s license may already be administratively suspended—even though you have not been convicted of any crime.
You generally have only 10 days from the date the notice of suspension was issued to challenge the suspension or request review for a restricted driving privilege. Waiting for your first court date may mean losing important rights.
Landsman Law represents drivers facing DUI charges and refusal-related license suspensions in Gainesville, Alachua County, and throughout North Florida. Matt Landsman is a Board Certified Criminal Trial Lawyer with more than 20 years of experience handling criminal and DUI cases.
Call Landsman Law as soon as possible to discuss your DUI refusal, driver’s license, and defense options.
The 10-Day Deadline After a DUI Refusal
Following a DUI arrest involving an alleged refusal, the officer will ordinarily take the driver’s license and issue a notice of suspension. If the driver is otherwise eligible, the citation or permit may authorize limited driving for only 10 days.
Under section 322.2615, Florida Statutes, a driver generally has 10 days after the notice of suspension is issued to choose among the available administrative options. These may include:
- Requesting a formal review hearing;
- Requesting an informal review;
- Seeking review for an immediate restricted driving privilege, when eligible; or
- Taking no action and allowing the administrative suspension to remain in effect.
The correct decision depends on the driver’s history, the facts of the arrest, the strength of the refusal challenge, and the driver’s immediate need to maintain driving privileges.
A DUI attorney should evaluate these options before the 10-day deadline expires.
What Is a Florida DUI Refusal Hearing?
A DUI refusal hearing is an administrative proceeding conducted through the Florida Department of Highway Safety and Motor Vehicles. It is separate from the criminal DUI case pending in county court.
The purpose of the hearing is to determine whether the Department has sufficient legal grounds to sustain the administrative driver’s license suspension.
A favorable result at the refusal hearing may invalidate the administrative suspension. It does not automatically dismiss the criminal DUI charge. Likewise, dismissal or reduction of the criminal case does not necessarily eliminate a refusal suspension.
Florida law expressly treats the administrative suspension and the criminal prosecution as separate proceedings.
How Long Is the License Suspension for Refusing a DUI Test?
The administrative suspension ordinarily depends on whether the driver has a prior qualifying refusal:
First Refusal
A first refusal generally results in a one-year driver’s license suspension.
Second or Subsequent Refusal
If the driver’s license was previously suspended for refusing a lawful breath, blood, or urine test, the new refusal may result in an 18-month suspension.
A prior refusal can also affect whether the driver qualifies for hardship driving privileges. Drivers with multiple refusal suspensions may face substantially greater restrictions.
Under Florida’s current implied-consent law, refusing a lawful test may also expose a driver to a separate criminal charge. A prior refusal can increase the level of that offense. The precise consequences should be reviewed based on the date of the alleged offense and the driver’s complete history.
Formal Review Hearing Versus Immediate Hardship License
One of the most important decisions following a DUI refusal is whether to challenge the suspension through a formal review hearing or waive that challenge and seek an immediate restricted license.
These options are not interchangeable.
Option One: Request a Formal Review Hearing
A formal review hearing allows the driver to contest the legality of the administrative suspension.
At the hearing, an attorney may review the documents submitted by law enforcement, present relevant evidence, make legal arguments, and subpoena certain officers or witnesses.
The hearing officer must determine whether the Department established the required issues by a preponderance of the evidence.
The potential advantage is significant: if the suspension is invalidated, the driver may regain full driving privileges, assuming no other suspension or restriction applies.
The risk is that if the suspension is sustained, a driver with a first refusal may ordinarily be required to serve a 90-day period without hardship eligibility after the final temporary permit expires.
Option Two: Waive the Review and Seek a Restricted License
Certain first-time offenders may be eligible to waive the formal and informal review process and seek a driver’s license restricted to business purposes.
This option may help an eligible driver avoid the 90-day period without hardship driving privileges. However, accepting the restricted license constitutes a waiver of the right to challenge the administrative suspension through a formal or informal review.
The administrative suspension remains on the driver’s record even if the criminal DUI charge is later reduced or dismissed.
Eligibility generally requires that the person:
- Has never previously had a license suspended under section 322.2615;
- Has never been disqualified under the commercial-driver provisions of section 322.64;
- Has never been convicted of DUI or a substantially similar out-of-state offense; and
- Is otherwise eligible for the restricted driving privilege.
Enrollment in an approved DUI program is generally required.
Choosing an immediate hardship license may provide more predictable driving privileges, but it gives up the opportunity to attack the suspension. That decision should not be made without considering the evidence and the possible consequences.
What Must the Department Prove at a Refusal Hearing?
For a suspension based on an alleged refusal, section 322.2615 limits the formal review hearing to several central questions:
Did the Officer Have Probable Cause?
The hearing officer considers whether law enforcement had probable cause to believe that the driver was driving or in actual physical control of a vehicle while under the influence of alcohol, a chemical substance, or a controlled substance.
This analysis may involve:
- The reason for the traffic stop;
- The legality of the detention;
- Driving observations;
- Statements attributed to the driver;
- Physical observations;
- Field sobriety exercises;
- Body-camera or dashboard-camera video;
- Witness reports; and
- The circumstances leading to the arrest.
Did the Driver Actually Refuse?
The Department must establish that the driver refused after being requested to submit to the test.
Not every failed or incomplete test is automatically a willful refusal. Issues may arise when:
- The driver attempted to provide a breath sample;
- The breath-test machine did not register a sample;
- The driver had a medical or physical limitation;
- The officer treated confusion or a question as a refusal;
- The driver requested clarification;
- Instructions were inconsistent or incomplete;
- The officer terminated the testing process prematurely; or
- The paperwork conflicts with the video evidence.
Was the Required Warning Given?
The Department must establish that the driver was warned of the license consequences of refusing the test.
For purposes of the administrative suspension, the warning must communicate that a refusal will result in a one-year suspension for a first refusal or an 18-month suspension for a subsequent refusal.
The validity and completeness of the warning may become an important issue in the hearing.
Potential Defenses at a DUI Refusal Hearing
Every case is different, but possible grounds for challenging a refusal suspension may include:
Illegal Traffic Stop
Law enforcement generally must have a lawful basis for stopping or detaining the driver. A stop based only on speculation, an unsupported hunch, or conduct that does not amount to a traffic violation may be challenged.
Insufficient Evidence of DUI
The officer must have probable cause to believe the person was driving or in actual physical control while impaired. The smell of alcohol alone does not necessarily establish impairment.
Video evidence may contradict claims concerning balance, speech, coordination, behavior, or performance on field sobriety exercises.
No Lawful Arrest
Florida’s implied-consent requirements generally depend on a lawful arrest and a test request made under circumstances authorized by statute. Defects in the arrest or test request can affect the suspension.
Test Was Not Legally Authorized
Different legal requirements apply to breath, urine, and blood testing. A blood-test request, in particular, is not automatically lawful in every DUI investigation.
The defense may examine whether the statutory requirements for the specific test were satisfied.
No Actual Refusal
A driver may have agreed to test but been physically unable to provide the requested sample. Illness, breathing limitations, dental conditions, panic, injury, or equipment problems may become relevant.
The video and testing records should be compared carefully with the officer’s characterization of the event.
Improper or Incomplete Warning
If the officer failed to provide the legally required warning, or gave materially inaccurate information that affected the driver’s decision, the suspension may be challenged.
Conflicting Reports or Missing Evidence
Police reports, refusal affidavits, DUI citations, body-camera footage, dispatch records, breath-test documents, and witness testimony may contain inconsistencies.
A formal hearing provides an early opportunity to identify and preserve those problems.
What Happens at a Formal Review Hearing?
The formal review is held before a DHSMV hearing officer rather than a county court judge.
The hearing officer may:
- Administer oaths;
- Receive documents and other relevant evidence;
- Examine witnesses;
- issue subpoenas;
- Consider testimony;
- Question witnesses; and
- Sustain, amend, or invalidate the suspension.
The hearing may be conducted using communications technology rather than requiring every participant to appear in person.
Florida law generally requires the Department to schedule the formal hearing within 30 days after receiving the request. The Department must ordinarily issue its decision within seven working days after the hearing.
The hearing officer applies a preponderance-of-the-evidence standard, which is lower than the beyond-a-reasonable-doubt standard used in the criminal DUI case.
Can the Police Officer Be Subpoenaed?
A driver requesting a formal review may subpoena certain officers and witnesses identified in the documents submitted to the Department.
This may include the arresting officer or, where applicable, a breath-test operator.
Current Florida law provides that when an arresting officer or breath technician fails to appear after being properly subpoenaed, the Department must invalidate the suspension. Different rules may apply to other witnesses, and subpoena enforcement procedures may be necessary.
An attorney must ensure that subpoenas are properly issued, served, documented, and enforced when required. Merely requesting a subpoena does not guarantee that the suspension will be invalidated.
Does Requesting a Hearing Extend the Temporary Permit?
A request for a formal or informal hearing does not automatically stay the suspension.
The initial temporary permit ordinarily expires at midnight on the tenth day after the notice of suspension was issued. Additional temporary driving authority may be available in limited circumstances, including certain continuances initiated by the Department or proceedings involving enforcement of a subpoena.
Eligibility should be confirmed directly from the driver’s record and the documents issued following the arrest. A person should not assume that filing a hearing request permits continued driving.
Driving after the temporary permit expires, without a valid restricted or reinstated license, can lead to an additional criminal charge.
What Does “Business Purposes Only” Mean?
A business-purpose license is broader than permission to drive only to and from a job.
Section 322.271 defines a business-purpose restriction as driving necessary to maintain a livelihood. It may include:
- Driving to and from work;
- Necessary on-the-job driving;
- Educational travel;
- Medical appointments;
- Church; and
- Other driving reasonably connected to maintaining the driver’s livelihood.
It does not permit unrestricted personal or recreational driving.
A person accused of driving outside the scope of the restriction may face additional license and criminal consequences.
Is the Refusal Hearing Separate From the DUI Case?
Yes. A Florida DUI arrest can create at least two different proceedings:
- The administrative driver’s license case; and
- The criminal DUI prosecution.
The administrative hearing focuses primarily on the license suspension. The criminal case determines whether the State can prove DUI or another charged offense beyond a reasonable doubt.
Evidence developed through the administrative process may nevertheless be valuable in defending the criminal case. The hearing may reveal inconsistent testimony, missing reports, video discrepancies, problems with the arrest, or weaknesses in the officer’s claim that the driver refused.
The decision from the administrative hearing generally cannot be used to determine guilt in the DUI trial. A written statement submitted by the driver as part of a request for departmental review is also subject to statutory protections. Nevertheless, drivers should avoid submitting unnecessary factual statements without legal advice.
Can a DUI Charge Be Dismissed Even If I Refused Testing?
A refusal does not automatically prove DUI.
In a refusal case, prosecutors may attempt to rely on:
- Driving behavior;
- Officer observations;
- Field sobriety exercises;
- Body-camera footage;
- Statements;
- Evidence of alcohol or drug consumption;
- The alleged refusal; and
- Other circumstantial evidence.
Florida law permits the prosecution to introduce evidence of a lawful refusal. The defense may still challenge whether there was a true refusal, whether the request and warning were lawful, and what inference—if any—should be drawn from the evidence.
A DUI refusal case can sometimes be stronger for the defense because the State has no breath-alcohol number. In other cases, video or other evidence may create substantial challenges. The full investigation must be evaluated rather than assuming that refusing either wins or loses the case.
Why Hire Landsman Law for a DUI Refusal Hearing?
Administrative refusal cases involve short deadlines and legal issues that may not be obvious from the DUI citation.
Landsman Law can evaluate:
- Whether a formal review should be requested;
- Whether immediate hardship review is available;
- The legality of the stop and detention;
- Probable cause for the DUI arrest;
- Whether the requested test was lawful;
- Whether the implied-consent warning was sufficient;
- Whether the evidence establishes an actual refusal;
- Whether officers or witnesses should be subpoenaed;
- How the administrative strategy affects the criminal case; and
- Whether the driver is eligible for temporary or restricted driving privileges.
Matt Landsman is a Board Certified Criminal Trial Lawyer, a University of Florida law graduate, and a former public defender with leadership experience. He has more than 20 years of criminal-defense experience and has handled thousands of cases. Landsman Law provides experience and professionalism to all legal matters handled by our firm.
DUI Refusal Defense in Gainesville and North Florida
Landsman Law represents clients facing DUI refusal allegations in Gainesville and throughout North Florida, including:
- Alachua County;
- Bradford County;
- Gilchrist County;
- Levy County;
- Baker County;
- Union County;
- Marion County;
- Putnam County; and
- Surrounding communities.
Whether the arrest involved the Gainesville Police Department, Alachua County Sheriff’s Office, University of Florida Police Department, Florida Highway Patrol, or another agency, the 10-day administrative deadline may apply.
Contacting a lawyer promptly allows time to obtain the citation, examine the driving record, review the refusal history, and determine the best available licensing strategy.
Frequently Asked Questions About Florida DUI Refusal Hearings
How many days do I have to request a DUI refusal hearing?
A driver generally has 10 days from the date the notice of suspension was issued to request a formal or informal review. The notice date may be the date of the DUI arrest. See § 322.2615(1), Florida Statutes.
Is my DUI citation also a temporary driver’s license?
It may function as a 10-day temporary permit if the driver is otherwise eligible. The permit generally expires at midnight on the tenth day following issuance. The document should be reviewed carefully because not every driver is eligible.
Will my license be suspended for refusing a breath test?
A first refusal ordinarily results in a one-year administrative suspension. A qualifying second or subsequent refusal ordinarily results in an 18-month suspension. See §§ 316.1932 and 322.2615, Florida Statutes.
Can I drive to work after a refusal?
Possibly. The initial citation may provide temporary driving authority for 10 days. Certain first-time offenders may qualify for an immediate business-purpose license after waiving administrative review. Otherwise, a sustained first-refusal suspension ordinarily includes a 90-day period without hardship eligibility.
Should I request a formal review or take the hardship license?
That depends on the strength of the legal challenge, the driver’s history, employment and family needs, and tolerance for the risk of a 90-day hard-suspension period. Accepting immediate reinstatement waives formal and informal review. An attorney should review the evidence before that decision is made.
Can I challenge a refusal caused by a medical condition?
Potentially. A medical or physical condition may support an argument that the driver did not willfully refuse or was unable to provide the requested sample. Medical records, video, witness testimony, and the test operator’s conduct may be important.
What happens if the officer does not attend the formal hearing?
If the arresting officer or breath technician was properly subpoenaed and fails to appear, section 322.2615 provides that the Department must invalidate the suspension. Subpoena issuance and enforcement requirements must be followed carefully.
Will winning the refusal hearing dismiss the DUI?
No. Invalidation of the administrative suspension does not automatically dismiss the criminal charge. However, the same factual or legal weakness may also become important in the DUI defense.
Will dismissal of my DUI eliminate the refusal suspension?
Not automatically. Florida law provides that the disposition of the criminal proceeding does not control an administrative refusal suspension.
Can a refusal be used against me in court?
Florida law generally allows evidence of a lawful refusal to be introduced in the criminal case. The defense can challenge whether the incident was truly a refusal, whether the test request was lawful, whether the warning was proper, and what inference should be drawn from the circumstances.
Speak With a Gainesville DUI Refusal Lawyer
A Florida DUI refusal creates immediate consequences. The administrative deadline can expire before the first criminal court hearing takes place.
Landsman Law can evaluate the suspension, the refusal evidence, hardship-license eligibility, and the defense of the underlying DUI charge.
Contact Landsman Law for a confidential consultation about a DUI refusal hearing in Gainesville, Alachua County, or North Florida.
This page provides general information and is not legal advice. Administrative procedures, eligibility requirements, and criminal consequences depend on the facts and law applicable to each case.
Related DUI Resources
- Board Certified Criminal Trial Lawyer
- First DUI Offense
- Second DUI in Florida
- Felony DUI
- DUI Checkpoints
- Breath Test Defense
- Blood Test DUI
- Drug DUI
- Driver’s License Suspension
- Administrative License Hearings
- Search and Seizure
- Police Investigations
- Criminal Defense Lawyer
- Criminal Defense Gainesville
Call Landsman Law Today
A DUI arrest does not automatically mean a conviction. The sooner an experienced attorney becomes involved, the more opportunities there may be to protect your rights, preserve evidence, and develop an effective defense strategy.
If you have been arrested for DUI in Gainesville, Alachua County, or anywhere in North Central Florida, contact Landsman Law today for a free consultation.