¶68 (dissenting) — The lead opinion overcomplicates and confuses the issue this case presents. In doing so, the lead opinion loses track of the fundamental nature of what this case concerns—that is, a citizen’s right to choose to do something or not. The officer here requested that the defendant perform specific voluntary actions, which the defendant chose not to do. For the principles of voluntariness or consent to have any meaning, the only conclusion flowing from this choice is simply that—a choice was made. No evidentiary relevance should flow from this choice. The conviction should be reversed and the case remanded for a new trial.15
¶69 The lead opinion goes off track by relying mostly, if not exclusively, on cases challenging the admissibility of evidence of field sobriety tests (FSTs) where the tests were performed and the results were admitted as substantive evidence of guilt. The evidence was challenged on appeal. The essence of the reasoning of these cases is that, since the tests are voluntary, when a person consents to performing the tests, he or she is bound to that choice, good or bad. Moreover, no logical or legal sense exists for those cases to even analyze consent and uphold the admissibility of evidence at trial outside the context of a “search.” Those cases have little, if any, relevance here except the recognition that a person possesses the right to choose and that when valid consent to a search exists, the results are admissible.
*158¶70 Underscoring the consensual nature of this request is, unlike the statutory requirement established under our implied consent statutes and laws here, where an officer asks a person to perform the FSTs, no warnings, statutory or otherwise, are required advising the person of the consequences of refusal. Perhaps the statute could be revised to include FSTs and consequences of refusal, but the legislature has not acted to do so. That should logically mean that a person retains the fundamental right to choose.16
¶71 Remarkably, and without citing any relevant case authority, the lead opinion concludes this evidence is admissible to establish consciousness of guilt,17 which is what was argued by the State at trial. The lead opinion cites State v. Nordlund, 113 Wn. App. 171, 188, 53 P.3d 520 (2002), for this principle. But Nordlund involved a defendant’s refusal to supply hair samples required by a valid court order.
¶72 What the lead opinion fails to acknowledge is that implicit in Nordlund, absent the authority of the court order, a person retains the right to choose to refuse. This principle was correctly recognized and analyzed by the court in State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013), where the court reversed a conviction in which the prosecutor had improperly used at trial evidence that the defendant had refused consent to a warrantless search of his DNA (deoxyribonucleic acid). The exercise of the right to choose is not consciousness of guilt—the only consciousness *159the cases establish is a person made the conscious decision to choose.
¶73 Finally, the lead opinion erroneously reasons that the defendant’s interests emanate from the common law, not constitutional principles, and are therefore not protected from comment or use against the defendant at trial. This conclusion, which seems to be at the core of the lead opinion’s analysis, makes no sense from an overall constitutional perspective. It should make no difference whether a principle is recognized as a privacy interest under article I, section 7 of the Washington Constitution;18 a right of an accused under article I, section 9,19 or more generally under article I, section 30 or article I, section 32;20 or elsewhere under the common law, the principles and protections remain.
¶74 Especially important to cases like this one are facts such as that Mark Mecham was already under arrest and the officer was not engaging in a casual conversation concerning sports or the weather but was asking Mecham to voluntarily perform “tests” specifically designed and intended to elicit incriminating evidence. Under these circumstances, the choice in exercising the right to refuse consent should be recognized and protected. Fundamental principles of fairness arise where an officer misleads a person into making a choice only to result in the choice being used against them.
¶75 The constitution and the rights and principles are not foreign or divorced from the common law, as the lead opinion evidently believes. The constitution reflects and is founded on basic rights in existence at its adoption from the *160common law. The conviction should be reversed and the matter remanded for a new trial.
Owens, J., concurs with Johnson, J.Whether exercise of the right to choose is characterized as a privacy right, a due process right, or, as here—where the officer expressly tells the defendant the field sobriety tests are consensual—a fundamental fairness issue, the basic underlying principle is the same: that is, absent governmental authority to intrude, a person has a fundamental right to choose to be left alone.
One of the more significant strains of the right of privacy concerns the right of an individual to make personal decisions about his or her life free from government control. The right to choose flows from respect for personal dignity and allows an individual to define his or her own life. See Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting) (“[The makers of our Constitution] conferred, as against the [g]overnment, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.’’).
The original application of the “consciousness of guilt’’ doctrine was narrowly applied to the idea of flight from circumstances. See Alberty v. United States, 162 U.S. 499, 16 S. Ct. 864, 40 L. Ed. 1051 (1896).
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.’’
“No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.’’
“A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.’’