If you were not cooperating or not following the instructions, the law allows the prosecutor to deem it a refusal.
However, if for some medical reason, for example bronchitis or asthma, you were legitimately unable, physically, to maintain adequate breath to complete the test, then you can raise this as a defense and the prosecutor has a problem.
Either way, these are fact questions that can only be resolved in an administrative hearing and/or a trial. Sometimes both.
And, you don't do a DUI/DWI defense without experienced seasoned DUI/DWI defense counsel who has a good track record in your local courts.
This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.
Until you are formally arraigned you will not know exactly what the State decided to charge you with, but let's assume they charge the refusal as well as the DUI.
You may have a valid defense to the refused to blow charge. This is a very detailed and contested area of law so it would be best to get an attorney who has experience litigating these issues.
Your experience may also be enough to get permission from the judge to depose the breath test officer to preserve testimony about how that all went down. A jury will be sympathetic if they think you did your best but were blamed for failure anyway.
It's hard to say much more than this in this forum, but the bottom line is to get a DUI specific attorney on your case as you may have valid defenses for a refusal charge.
Your question doesn't indicate where in Florida you are, but if you're in the NorthEast area, feel free to give me a call and we can review the police report together.
If you have not requested an informal or formal review to of your license suspension, you only have 10 days to do so. and you should get an attorney to help you with that ASAP!
This is a very common issue that we encounter all the time. Short of a very good medical excuse, it's kind of win / win for the State. You were either intentionally playing games and refusing, or too impaired to provide a sample will be their argument. In the end though, it's only one piece in the entire case against you for being impaired. Where the refusal really hurts you is with the administrative suspension at DHSMV, you'll end up with a 90 day hard suspension rather than a 30 day one for blowing over .08. You definitely want an attorney, and every town has several that focus on DUIs. And as mentioned above, you have 10 days to requrest a review hearing at DHSMV.
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