dissenting.
The majority rejects defendant’s argument that all of the field sobriety tests that he was required to perform were “testimonial” under the Supreme Court’s holding in State v. Fish, 321 Or 48, 893 P2d 1023 (1995), and, therefore, that the trial court erred when it refused to suppress the evidence of the results of the tests as well as the derivative evidence of the Intoxilyzer and the blood test results. I believe that the reasoning in Fish clearly requires us to accept defendant’s argument as to the tests in question.
*310The majority and I agree that Fish did not hold expressly that all field sobriety tests are “testimonial” in nature.1 Rather, it focused on tests involving counting, answering questions relating to residence, date of birth, estimating a period of time and reciting the alphabet. In this case, the tests that the state required defendant to perform included the “walk-and-turn” test, the “standing on one leg” test, and the “Romberg Balance Test.” As will become apparent, each test involves “testimonial” aspects as defined by Fish.
It is important to recognize that Fish was decided under Article I, section 12, of the Oregon Constitution and not under the Fifth Amendment. That understanding is important because the court expands the concept of what would be “testimonial evidence” under the federal constitution. The court holds that “ ‘testimonial’ evidence is not limited to verbal statements of fact or belief’ under section 12. 321 Or at 59. “Rather, as explained * * * in connection with evidence of [the] refusal [to submit to field sobriety tests], ‘testimonial’ evidence includes any evidence of conduct communicating the individual’s state of mind.” Id. (Emphasis supplied.) Thus, according to Fish, the refusal to perform field sobriety tests is protected under section 12 because
“the state wants the jury to infer from the fact of an individual’s refusal that he or she is saying, ‘I refuse to perform field sobriety tests because I believe I will fail them.’ Thus, the fact that a person refused or failed to perform field sobriety tests inferentially may communicate that person’s belief — that the person refused to perform the tests because he or she believed that the performance of the tests would be incriminating. For an individual to reveal his or her thoughts is necessarily to make a communication, whether by words or actions.” 321 Or at 56. (Emphasis supplied.)
*311The test, then, under section 12 as to whether evidence is “testimonial” is whether it communicates information about the thoughts, beliefs, knowledge or state of mind of the actor. The court in Fish explains:
“Some of the field sobriety tests involve verbal statements that communicate information regarding an individual’s state of mind. Many of the field sobriety tests authorized by OAR 257-25-020(1) draw upon the individual’s memory, perception and ability to communicate, i.e., his or her testimonial capacity. For example, the tests involve counting, OAR 257-25-020(1)(b), (1)(f), (1)(h); answering questions relating to the individual’s residence and date of birth, OAR 257-25-020(1)(d)(B); estimating a period of time, OAR 257-25-020(1)(i); and reciting the alphabet, OAR 257-25-020(1)(g). There can be no doubt that those aspects of the field sobriety tests require the individual to communicate information to the police about the individual’s beliefs, knowledge, or state of mind. Accordingly, we conclude that at least those aspects of the field sobriety test are clearly ‘testimonial’ under Article I, section 12, of the Oregon Constitution.” 321 Or at 60. (Emphasis supplied.)
Thus, all evidence that communicates information about a state of mind constitutes “testimonial” evidence under section 12, including evidence of acts from which perception, uncommunicated physical sensations, comprehension and the processing of information so as to comply with directions could be inferred. For example, the counting test held to be “testimonial” in Fish can require the subject to count backwards. The mere recital of numbers by the subject reveals no incriminating information. Rather, the officer administers the test because he wishes to explore the subject’s mental faculty (his state of mind) to count in an unusual manner that requires mental gymnastics. Similarly, asking questions about residence, date of birth, lapse of time and the alphabet tests the subject’s ability to recall and recollect and his orientation to time and place. All of these tests require that the subject disclose some part of his or her thought life and, by inference, any impairment of mental processes.
In summary, it is apparent from the court’s discussion in Fish that it considers “state of mind” to encompass more than the verbal expression of incriminating thoughts or *312beliefs under section 12. Rather, “state of mind,” as defined, includes those inferences about memory, perception, cognitive processes and the ability to communicate that can be drawn from compelled conduct. Under the court’s holding,2 the protection of section 12 against self-incrimination is extended to any mental function that a subject would not wish to reveal while under the scrutiny of an officer investigating a driving while under the influence offense.
In this case, each test that defendant performed at the officer’s direction revealed something about his state of mind. As the majority concedes, the officer gave defendant multiple instructions3 regarding the walk-and-turn test, in part to test his ability to follow directions. Whether he followed those directions revealed something about his state of mind, i.e., whether he was able to perceive the directions, remember them and translate them into the requested actions. The instructions for the one-leg test and the “Rom-berg Balance Test” make the same inquiries. Thus, more than the mere performance of a physical exercise is at stake. The tests probed defendant’s mental faculties as well. In that sense, the walk-and-turn test, the one-leg stand test and the “Romberg Balance Test” are no different from the tests like counting backwards that require cognitive responses, and that the court found subject to section 12 in Fish.
Ultimately, at the heart of the issue is whether section 12 permits the state to compel its citizens to reveal the impairment of mental faculties that arises from the interaction of alcohol with the brain and the central nervous system. *313The majority is correct that tests that compel production of physical evidence such as blood, fingerprints or handwriting exemplars do not implicate section 12. Similarly, to the extent that the administration of field sobriety tests manifest an impaired physical state, section 12 is not implicated. However, as I have pointed out, the field sobriety tests administered in this case produced more than physical evidence or observations of physical behavior. They told the officer how defendant perceived what was going on around him and whether he was able to follow specific directions both mentally and physically. In essence, they required him to disclose what was in his mind.
Under ORS 813.010(1)(b), a person is guilty of driving while under the influence when the person’s physical or mental faculties are adversely affected to a noticeable or perceptible degree. State v. O’Key, 321 Or 285, n 31, 899 P2d 663 (1995). Impairment due to alcohol consumption is not always physically apparent. Field sobriety tests, like the ones that the state compelled defendant to perform, also could compel disclosure of evidence of an incriminating impairment to mental faculties that may not otherwise be perceptible or noticeable. Because the court has defined “testimonial evidence” as any evidence communicating an individual’s state of mind, it necessarily follows that section 12 is implicated when an individual is compelled to disclose against his will how his mental processes operate. As construed, section 12 guarantees not only that our verbal expressions cannot be used against us, but also that which we perceive, sense, believe and know in our minds and do not wish to communicate. Defendant’s argument under Fish is correct, and, therefore, his conviction should be reversed.
For these reasons, I dissent.4
Warren, J., joins in this dissent.
The court explained:
“Whether field sobriety tests are testimonial presents a difficult issue concerning the boundary between ‘testimonial’ and ‘non-testimonial’ evidence. * * * Because we need only decide if any portion of the field sobriety tests approved in OAR 257-25-020(1) involves ‘testimonial’ evidence, we need not delineate the precise contours of ‘testimonial’ evidence under Article I, section 12. Accordingly, we express no opinion regarding whether aspects of the field sobriety tests other than those we expressly address are ‘testimonial’ or ‘non-testimonial.’ ” 321 Or at 59 n 6. (Emphasis in original.)
The majority asserts a second reason for rejecting defendant’s argument. It says that the Supreme Court “has disclaimed, albeit in dictum, the notion that its decision in Fish requires all field sobriety tests to be considered testimonial.” 147 Or App at 302-03. The dictum in State v. Prickett, 324 Or 489, 930 P2d 221 (1997), on which it relies, merely states the obvious. The court in Fish did not undertake to decide whether every field sobriety test compels testimonial evidence, nor is that the import of my position. It is apparent that some tests, like the Horizontal Gaze Nystagmus test, measure solely physical reactions, and, therefore, could be considered to compel the production of physical evidence only.
Each test required defendant to perform multiple physical and mental functions at the same time. For instance, defendant was requested to keep his hands at his side, stand on one leg, raise the other six inches off the ground, look at his toe and count from 1 to 30 by thousands. Then, he was asked to stand with his feet together, toes touching, heels side-by-side, hands down to his sides, eyes closed, head tipped back and to recite the alphabet.
I feel as strongly about the enforcement of our driving while under the influence laws as the next person. We lose too many productive citizens because of drinking and driving, and the efforts to limit the carnage on our highways have a worthy objective. Nonetheless, the fervor to save lives needs to be tempered by the understanding that the constitutional prohibition against self-incrimination is at the core of our liberty, and that, when implicated, there is more at stake than the interests of the public in getting drunk drivers off the road. Because the Supreme Court has given effect to a constitutional provision in this context, the right against self-incrimination necessarily transcends what otherwise would be a justifiable end.