COA rejects novel refusal argument and affirms
State v. Jeffrey Lee Buss, 2025AP392, 1/23/26, District IV (ineligible for publication); case activity
Although Buss makes some interesting arguments as to why he did not “refuse” the requested breath test, COA is unpersuaded and affirms.
Following Buss’s arrest for alleged drunk driving, a deputy asked Buss to consent to an evidentiary test of his breath pursuant to § 343.305(3)(a). (¶3). Although the deputy repeatedly asked for Buss’s consent, Buss stood silent during the exchange, even after he was warned that his silence would be interpreted as a refusal. (Id.). Buss requested a refusal hearing and appeals the circuit court’s order that he had, in fact, refused the test. (¶4).
In essence, Buss argues that silence in response to a request to consent should not be deemed a refusal as, under his reading of the statutes and via application of contract law principles, all drivers are “deemed to have given consent” and that this consent remains operative until the person affirmatively withdraws it in response to the law enforcement officer’s request. (¶7). COA notes that this line of argument is in tension with prior decisions which “have consistently rejected arguments by drivers that the drivers did not refuse chemical tests even when the drivers did not explicitly decline a test by, for example, saying ‘no,’ or ‘I refuse.'” (¶9).
More problematically, Buss’s “deemed consent” argument is contrary to SCOW’s decision in State v. Prado, which distinguished the “deemed consent” language in § 343.305 from the “actual consent” required by the Fourth Amendment. (¶11). It was up to Buss to either give or withhold his consent; his decision to “play games” by standing silent does not allow him to evade the consequences of refusing the test. (¶14). Accordingly, COA affirms.