(dissenting) — Without critical analysis the majority flatly concludes a suspect’s refusal to take a field sobriety test produces the same objective, nontestimonial evidence as the performance of the test itself. The majority never explains just how a refusal produces objective manifestations of lack of physical coordination or mental confusion. Indeed, the majority admits, as does the City of Seattle, that evidence of refusal was admitted solely to prove Stalsbroten’s self-inculpatory knowledge of guilt. A defendant’s verbal response to police questioning that is admitted specifically and solely to reveal the defendant’s state of mind, thought, or belief goes to the heart of “testimonial” self-incrimination within the meaning of the Fifth Amendment, and the Court of Appeals in this case correctly so held. City of Seattle v. Stalsbroten, 91 Wn. App. 226, 235, 957 P.2d 260 (1998).
A communication is testimonial if it “ ‘explicitly or implicitly [ ] relate [s] a factual assertion or disclose [s3 information.’ ” Pennsylvania v. Muniz, 496 U.S. 582, 594, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990) (quoting Doe v. United States, 487 U.S. 201, 210, 108 S. Ct. 2341, 101 L. Ed. 2d *240184 (1988)). Thus, the Fifth Amendment3 right against self-incrimination is implicated whenever an accused is compelled “ ‘to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.’ ” Muniz, 496 U.S. at 595 (quoting Doe, 487 U.S. at 213). The right is intended “to prohibit the inquisitorial method of investigation in which the accused is forced to disclose the contents of his mind, or speak his guilt.” State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996) (citing Doe, 487 U.S. at 210-12).
In the present case, the trial court found Stalsbroten’s refusal to perform the field sobriety test (FST) relevant and admissible specifically because it communicated Stalsbroten’s “consciousness of his guilt.” Clerk’s Papers at 27. The prosecution commented on the refusal in its opening statement and elicited direct and rebuttal testimony from the arresting officer that Stalsbroten had responded, “No way,” when the officer asked whether he would be willing to take the test. On cross-examination, the prosecution asked:
And ... is it true that the reason you said, “No way” to the field tests is because you were afraid they would show how physically impaired you actually were from the alcohol? Isn’t that true, Mr. Stalsbroten?
Partial Tr. of Proceeding (July 6, 1995) at 134 (City’s Resp. to Mot. for Discretionary Review) (hereinafter “Transcript”). In closing, the prosecutor then argued the point at length:
Members of the jury. So, what does one do when one is a fairly smart person ... do when they’re caught and they know they’re caught red-handed and they’ve had too much to drink and they’re pulled over for doing something stupid. He knows
*241. . . that they’re going to smell like alcohol; start hiding the ball; start limiting the damage; start engaging in damage control. The City submits that that’s exactly what Mr. Stalsbroten did in this case; did not do the field sobriety tests; would not blow into the breath machine.
Transcript at 142. And then again:
He was asked . . . the officer asked the defendant to get out . . . and step out of his vehicle and perform some field sobriety tests. . . . [H]e was standing there . . . having trouble standing. He refused to do the field sobriety tests, with no explanation ... at the time.
Transcript at 144.
The record leaves no doubt, therefore, the evidence of refusal in this case was offered for its testimonial component. It was intended to disclose the contents of Stalsbroten’s mind, to reveal self-inculpatory thoughts and beliefs related to the commission of the crime. In short, evidence of refusal was used as a confession. The trial court admitted it for this purpose; the prosecution elicited testimony of it during its case in chief for this purpose; the jury was specifically urged to rely on it for this purpose.
Nevertheless, despite the indisputable and admitted testimonial purpose for which the refusal was offered in this case, the majority flatly concludes “[a] suspect’s refusal to perform an FST is no more testimonial than the suspect’s actual performance of an FST.” Majority at 234. This conclusion, however, does not survive critical analysis. An FST is admissible precisely because it does not communicate the suspect’s thoughts or beliefs. Rather, an FST is “premised upon the relationship between intoxication and the externally manifested loss of coordination . . . .” State v. Arsenault, 115 N.H. 109, 113, 336 A.2d 244 (1975) (emphasis added). Like Breathalyzer or blood alcohol tests, field sobriety tests “do not seek to compel from the defendant any knowledge he might have; nor do they involve the defendant’s communicative faculties in any way. They only compel him to exhibit his physical characteristics of *242coordination.” Arsenault, 115 N.H. at 113 (citations omitted). See also State v. Wyatt, 67 Haw. 293, 302, 687 P.2d 544 (1984); People v. Ramirez, 199 Colo. 367, 373-74, 609 P.2d 616 (1980), overruled on other grounds by People v. Archuleta, 719 P.2d 1091 (Colo. 1986). Accordingly, the FST does not produce “testimonial” evidence, but produces only real or physical evidence that does not fall within the privilege against self-incrimination.
Conversely, to the extent action requested of a drunk driving suspect produces evidence which is incriminating not just because of its physical delivery, but also because of its content, it is testimonial. Muniz, 496 U.S. at 593 (holding that requesting defendant to state the date of his sixth birthday required a testimonial response because “the incriminating inference of mental confusion is drawn from a testimonial act” as much as from its physical delivery). It is beside the point that, if consented to, the test itself would have produced objective evidence of inebriation. “The correct question for present purposes is whether the incriminating inference [of inebriation] is drawn from a testimonial act or from physical evidence.” Muniz, 496 U.S. at 593. As the facts of this case show, evidence of refusal is offered precisely because of its incriminating testimonial quality.
Unlike the objective evidence produced by the test itself, evidence of a defendant’s refusal to take an FST is relevant to the prosecution’s case in chief precisely because it communicates the thoughts and beliefs of the defendant. State v. Green, 68 Or. App. 518, 522, 684 P.2d 575 (1984) (“Evidence of a defendant’s refusal is relevant in that it shows that he believed that the results of the test would tend to incriminate him and thus shows that he believed that he was guilty. Specifically, the state wants the jury to infer, from the fact of a defendant’s refusal, that he is saying, T will not take the field sobriety tests because I believe I will fail them.’ ”), overruled on other grounds by State v. Panichello, 71 Or. App. 519, 692 P.2d 720 (1984) and superseded by statute as stated in State v. Fish, 115 Or. App. 609, 839 P.2d 278 (1992), rev’d, 321 Or. 48, 56, 893 P.2d 1023 (1995) *243(finding statute unconstitutional and reiterating that refused evidence is “testimonial.”); Opinion of the Justices to the Senate, 412 Mass. 1201, 1211, 591 N.E.2d 1073 (1992) (“[I]f refusal evidence has any relevance to any issue essential to the prosecution’s case, it is because it is reflective of the knowledge, understanding, and thought process of the accused.”).
Indeed, we have previously held that refusal evidence is irrelevant to the State’s case in chief except for its testimonial component. See State v. Zwicker, 105 Wn.2d 228, 233, 238, 713 P.2d 1101 (1986) (evidence of refusal to take a Breathalyzer test is not relevant to prosecution’s case in chief except to draw inference of guilt or innocence and is, therefore, inadmissible under implied consent statute). There, we reasoned the statute prohibited the State from arguing “that guilt can be inferred from the defendant’s refusal or that the defendant’s refusal can give rise to an inference that he had conscious doubts as to whether or not the test would vindicate his sobriety.” Zwicker, 105 Wn.2d at 232-33. We rejected the State’s contention that refusal evidence had probative value for any other purpose. Zwicker, 105 Wn.2d at 235. Not being relevant except to draw an inference of guilt or innocence, we held refusal evidence irrelevant and inadmissible in the State’s case in chief. Zwicker, 105 Wn.2d at 238. Thus, like the Oregon Court of Appeals in Green, Zwicker necessarily holds that refusal evidence is relevant to the State’s case in chief specifically and only for its testimonial component—to establish the defendant’s state of mind from which an inference of guilt may be drawn.4
This case underscores the above discussion. Here, there is no contention the evidence was offered to demonstrate the physical manner in which Stalsbroten delivered the words, “No way.” Rather, the evidence was admittedly of*244fered solely for its testimonial value—the implied assertion of belief that Stalsbroten knew he was drunk. When offered to communicate the defendant’s state of mind, refusal evidence “is, in essence, testimony concerning the defendant’s belief on the central issue of the case.” Green, 68 Or. App; at 522. Thus, indisputably, the incriminating value of the evidence here stemmed in whole from its testimonial component.
Accordingly, the majority is simply wrong that a defendant’s response to police questioning offered for the sole purpose of exposing the defendant’s own consciousness of guilt does not fall within the meaning of “testimonial” as envisioned by the Fifth Amendment. A defendant’s response to police questioning is “testimonial” within the meaning of the Fifth Amendment whenever it “reflects the actor’s communication of his thoughts to another.” Muniz, 496 U.S. at 595 n.9. As the foregoing demonstrates, the whole point of offering refusal evidence is to communicate such thoughts.
The majority’s contention that refusal evidence may have probative value unrelated to its testimonial component is irrelevant to the discussion at hand. Majority at 234 (“Just because refusal evidence has probative value does not mean that such evidence is testimonial.”). Where refusal evidence is offered for purposes other than for its testimonial component, it is relevant and admissible only for impeachment. Zwicker, 105 Wn.2d at 238 (refusal evidence is relevant to the State’s case in chief only where it may properly be used to infer guilt; in other circumstances it is relevant and admissible for purposes of impeachment only). Indeed, in the very case the majority cites for its proposition that refusal evidence is relevant and admissible for purposes other than its testimonial aspect, the jury was instructed it could not draw an inference of guilt from the refusal. See Welch v. District Court, 461 F. Supp. 592, 595 n.1 (D. Vt. 1978) (specifically instructing the jury it could draw no “inculpatory inference” from the right of refusal), aff’d, 594 F.2d 903 (2d Cir. 1979). Here, the opposite occurred. *245The trial court found the refusal relevant and admissible precisely because it went to the defendant’s consciousness of his guilt, and the prosecutor belabored the point at length. In short, there is simply no room in this case to argue the evidence of refusal was properly admissible for some purpose other than for its testimonial component since the record irrefutably demonstrates it was offered for no other purpose.
Nor is refusal a nontestimonial “act” as the majority posits. Majority at 234. The United States Supreme Court has refused to adopt such an approach. See South Dakota v. Neville, 459 U.S. 553, 561, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983) (recognizing “the distinction between real or physical evidence, on the one hand, and communications or testimony, on the other, is not readily drawn in many cases,” and “situations arising from a refusal present a difficult gradation from a person who indicates refusal by complete inaction, to one who nods his head negatively, to one who states T refuse to take the test’. . . .”). In rejecting this approach, the Supreme Court in Neville, 459 U.S. at 561 n.ll, specifically referenced Newhouse v. Misterly, 415 F.2d 514 (9th Cir. 1969), the case upon which the majority now relies.5 Moreover, Misterly itself states that “where an underlying right to refuse such a blood [alcohol] test is present, it would be improper to draw adverse inferences from failure of the accused to respond to a request for a blood test because the accused would thereby be penalized for exercising his rights to refuse the test.” Misterly, 415 F.2d at 518 (emphasis added). Accordingly, the Misterly court ruled the refusal admissible only because the defendant did not make any statement when asked to perform the test and because California gave neither a constitutional nor a statutory right of refusal. Misterly, 415 F.2d at 518. Properly analyzed, therefore, Misterly does not support the majority’s position but merely begs the question.
*246In contrast to Misterly, here Stalsbroten had an absolute right to refuse to take the test, City of Seattle v. Personeus, 63 Wn. App. 461, 465, 819 P.2d 821 (1991), and did so by responding verbally, stating, “No way,” when the officer requested him to perform the FST. Finally, and perhaps most importantly, refusal to take an FST is always responsive to a direct question from an officer. Thus, whether indicated by silence, a nod of the head, or a verbal response, refusal is always testimonial in nature because it communicates an assertion to the officer. This is true particularly, as here, where the refusal is admitted specifically to reveal the defendant’s belief regarding his own guilt. See Muniz, 496 U.S. at 595 n.9 (The Fifth Amendment right against compelled revelation of one’s thoughts and beliefs “applies to both verbal and nonverbal conduct; nonverbal conduct contains a testimonial component whenever the conduct reflects the actor’s communication of his thoughts to another.”).
In addition to finding Stalsbroten’s refusal “testimonial,” I would hold his response was “compelled” within the meaning of the Fifth Amendment. In Zwicker, 105 Wn.2d at 242, we held that attaching evidentiary penalties to the exercise of the statutory right of refusal was not unconstitutionally coercive where the Legislature could withdraw this privilege altogether. We went on to state, “perhaps more importantly,” the defendant had not been granted the right of refusal “without a corresponding warning of the consequences of exercising that right.” Zwicker, 105 Wn.2d at 242. We specifically noted “the Washington implied consent statute requires that the accused be warned that a refusal to submit to the blood alcohol content test may be used against him in a subsequent criminal proceeding.” Zwicker, 105 Wn.2d at 242-43 (emphasis omitted). Accordingly, we held “there is no coercion in obtaining refusal evidence where the accused is fully informed of the consequences of exercising the statutory right of refusal.” Zwicker, 105 Wn.2d at 243 (emphasis added). Thus, our holding in Zwicker was premised on two rationales: (1) the test was statutorily authorized under the implied consent *247law and the right of refusal was merely a grant of legislative grace; and (2) the accused was fully informed of the consequences of exercising the right of refusal.
Neither rationale is present in this case. The Legislature has chosen not to include field sobriety tests within the implied consent laws. There is, thus, no statutory or other legal requirement that a driver take such tests, nor has the right of refusal been statutorily conditioned. The Oregon Court of Appeals correctly recognizes the coercive effect of using refusal evidence under these circumstances:
Because defendant had no obligation to take the test, there could also be no conditions placed on his refusal. Use of the fact that he refused enables the state to obtain communicative evidence to which it would otherwise have no right, as a result of defendant’s refusal to provide noncommunicative evidence to which [the state] also had no right. This situation is thus a true Hobson’s Choice.
Green, 68 Or. App. at 526. See also Opinion of the Justices, 412 Mass, at 1211 (implied consent statute “uses the threat of adverse testimonial evidence as a coercive tool to compel submission to a breathalyzer test. The accused is thus placed in a ‘Catch-22’ situation: take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial. . . . Therefore, such refusal evidence is both compelled and furnishes evidence against oneself.”).
Essentially, Stalsbroten, like all motorists asked to perform the FST, is placed in a situation where any response to the officer’s request (short of taking the test itself), including silence,6 would be taken as refusal and would produce involuntary testimonial evidence against him. (Again, such evidence would be relevant to the *248prosecution’s case in chief only to reveal the defendant’s consciousness of guilt). To place an accused in a situation where he or she must either comply with the State’s request or produce self-incriminatory testimonial evidence is inherently coercive. Any response in these circumstances is not “voluntary” in any meaningful sense of the word.
Thus, I would hold that evidence of refusal to take the field sobriety test is both “testimonial” and “compelled” within the meaning of the Fifth Amendment.
Smith, Alexander, and Sanders, JJ., concur with Johnson, J.
Although the wording of article I, section 9 of our state constitution is substantially different than the Fifth Amendment, Stalsbroten has not argued it provides greater protection. Therefore, the issue in this case is limited to the scope of the right as afforded under the Fifth Amendment.
Subsequently, in State v. Long, 113 Wn.2d 266, 272, 778 P.2d 1027 (1989), we held refusal evidence relevant and admissible specifically because it could now be used to infer guilt or innocence under the amended implied consent law. Thus, Long merely reiterates that refusal evidence is relevant because of its testimonial component.
The New Mexico case cited by the majority also relied on Misterly. See State v. Wright, 116 N.M. 832, 835, 867 P.2d 1214 (Ct. App. 1993) (quoting McKay v. Davis, 99 N.M. 29, 31, 653 P.2d 860 (1982) (quoting Misterly, 415 F.2d at 518)).
It is unclear how the majority would treat silence in the face of an officer’s request to perform an FST since silence itself could simply be taken as a “nontestimonial” act of refusal. Commenting on a defendant’s silence, however, would clearly implicate the constitutional right against self-incrimination. See Easter, 130 Wn.2d at 241 (officer’s testimony defining “ ‘smart drunk’ as meaning evasive behavior and silence” in response to police questioning violated defendant’s right against self-incrimination).