concurring.
I agree with the majority that Officer Pulicella did not subjectively believe that he had probable cause to arrest petitioner for DUII before administering the field sobriety tests. I write separately only to point out how recent cases have dramatically altered the investigation of DUII offenses.
Although the majority and dissent are fighting over what appears to be an overly fine point, recent cases have reduced the law of DUII to just such narrow issues. In the light of State v. Nagel, 320 Or 24, 880 P2d 451 (1994), and State v. Fish, 321 Or 48, 893 P2d 1023 (1995), Oregon courts increasingly will be required to focus on such apparently insignificant, but ultimately dispostive issues, and fights over the minutae will become commonplace.
Traditionally, the only limit on an officer’s ability to request and observe field sobriety tests was whether the officer had reasonable suspicion of DUII sufficient to detain the driver. State v. Niles, 74 Or App 383, 387, 703 P2d 1030 (1985). There was no probable cause requirement because administering sobriety tests was not considered a “search” under Article I, section 9, of the Oregon Constitution. Id. at 386-87.1 However, in Nagel, the Supreme Court held that field sobriety tests constitute a search,2 which must be supported by probable cause.3 320 Or 31-32. Because probable *631cause has both an objective and subjective component, see State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986), an officer cannot request field sobriety tests unless he personally believes at that time that he has probable cause to arrest the driver for DUII, regardless of whether a court in hindsight finds that probable cause was present. Nagel, 320 Or at 32. Hence the fine-line of disagreement between the majority and dissent.
Another facet to this problem, though not an issue in this case, is how the police may request field sobriety tests, and what, if any, information they must impart to the driver. In 1989, the Oregon Legislature added ORS 813.135 and ORS 813.1364 to the “Implied Consent Law.” ORS 813.135 provides:
“Any person who operates a vehicle upon premises open to the public or the highways of the state shall be deemed to have given consent to submit to field sobriety tests upon the request of a police officer for the purpose of determining if the person is under the influence of intoxicants if the police officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants in violation of ORS 813.010 or a municipal ordinance. Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.” (Emphasis supplied.)
ORS 813.136 provides:
*632“If a person refuses or fails to submit to field sobriety-tests as required by ORS 813.135, evidence of the person’s refusal or failure to submit is admissible in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants.”
ORS 813.135, on its face, requires the police to inform drivers of the evidentiary consequences of refusing to perform field sobriety tests. However, the Supreme Court, in State v. Trenary, 316 Or 172, 850 P2d 356 (1993), held that the failure to inform does not make test results inadmissible, as long as the defendant voluntarily complies with the officer’s request. Id. at 177-79.5 Only when a driver refuses to perform the tests, the court concluded, would the failure to advise warrant suppression of the driver’s refusal. Id. at 177-78.
Because there are no adverse consequences to violating ORS 813.135, officers have no incentive before requesting a sobriety test to advise motorists of the statutory consequences of refusing, or even that they have the option of doing so. It is only when a driver has refused that an officer would be motivated to comply with ORS 813.135, because, under Trenary, only then is the state subject to a suppression penalty.6 However, in the light of the Supreme Court’s decision in Fish, 321 Or 48, it is now doubtful whether it is lawful for the police to advise a driver of the statutory consequences of refusing a field sobriety test.
In Fish, the Supreme Court held that admitting into evidence a defendant’s refusal to submit to field sobriety tests violates the right against compelled self-incrimination under Article I, section 12.7 Id. at 60-61. As I understand Fish, if a *633defendant’s refusal cannot constitutionally be used as evidence against him, then the police cannot inform him of those consequences in requesting that he perform the tests. Therefore, after Trenary, not only do the police have no incentive to advise compliant drivers of the consequences of refusing under ORS 813.136, but, after Fish, they are apparently no longer allowed to, regardless of the driver’s disposition.
The ramifications of Fish do not stop there. Read in conjunction with Nagel, Fish may also interject the requirement of Miranda warnings into field sobriety tests. Under Article I, section 12, Miranda-type warnings are required when a defendant is interrogated in “full custody” or in a “setting which judges would and officers should recognize to be ‘compelling.’ ” State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990); State v. Mourlas, 120 Or App 19, 22, 852 P2d 268, rev den 317 Or 272 (1993). This court has consistently indicated that Miranda warnings are not required before administering field sobriety tests, partly because such tests are not interrogation designed to elicit incriminating “testimonial” responses, but are intended only to gather “demonstrative” physical evidence. State v. Whitehead, 121 Or App 619, 623, 855 P2d 1149 (1993); State v. Lawrence, 117 Or App 99, 104, 843 P2d 488 (1992), affirmed 320 Or 107, 880 P2d 431 (1994); State v. Scott, 111 Or App 308, 312, 826 P2d 71 (1992); State v. Wells, 58 Or App 617, 621, 650 P2d 117 (1982), rev den 295 Or 446 (1983); State v. Medenbach, 48 Or App 133, 138-39, 616 P2d 543 (1980).
However, as part of its Article I, section 12, analysis, the majority in Fish concluded as a matter of law that some of the field sobriety tests authorized by OAR 257-25-020(1) are “testimonial” because “they require the individual to communicate information to the police about the individual’s beliefs, knowledge, or state of mind.” 321 Or at 60. As examples, the court cited tests involving counting, OAR 257-25-020(l)(b), (l)(f), (l)(h);8 answering questions relating to the *634individual’s residence and date of birth, OAR 257-25-020(l)(d)(B); estimating a period of time, OAR 257-25-020(l)(i); and reciting the alphabet, OAR 257-25-020(l)(g). Id.
Interrogation alone, however, does not require Miranda warnings; interrogation must also be “custodial” or take place in otherwise “compelling circumstances.” Smith, 310 Or at 7; Mourlas, 120 Or App at 22. It is unclear, under current case law, whether field sobriety tests constitute such a circumstance. Although the Supreme Court in Nagel held that administering field sobriety tests is a “search,” it did not also say they amount to a “seizure” of the person. Indeed, in State v. Campbell, 306 Or 157, 759 P2d 1040 (1988), placing an electronic tracking device on a suspect’s vehicle was a “search,” 306 Or at 172, although it clearly did not involve a seizure of the suspect’s person.
Furthermore, we have held that the setting in which field sobriety tests are requested and performed generally does not constitute inherently “compelling circumstances.” State v. Schaffer, 114 Or App 328, 332-33, 835 P2d 134 (1992); State v. Gainer, 70 Or App 199, 203, 689 P2d 323 (1984). However, there is no bright line rule as to when circumstances are “compelling” for Miranda purposes under the Oregon Constitution.9 Rather, whether an individual is subject to the equivalent of “full custody’ generally depends on the facts and circumstances of each case. Smith, 310 Or at 7-8; State v. Magee, 304 Or 261, 265-66, 744 P2d 250 (1987); State v. Tobias, 131 Or App 591, 594, 887 P2d 366 (1994); State v. Widerstrom, 109 Or App 18, 21-23, 818 P2d 934, rev den 312 Or 526 (1991); State v. Greason, 106 Or App 529, 533, 809 P2d 695, rev den 311 Or 643 (1991); State v. Walker, 104 Or App 410, 416-17, 801 P2d 877 (1990), rev den 311 Or 187 (1991). It is an open question whether that determination is affected by the Supreme Court’s characterization of field sobriety tests as a “search.”
*635It appears, therefore, depending on the underlying custodial circumstances, that the police may be required to issue Miranda warnings before administering any sobriety tests that “draw upon the individual’s memory, perception, and ability to communicate, i.e., his or her testimonial capacity.” Fish, 321 Or at 60. Apparently, it is only purely demonstrative tests of physical reaction and dexterity, such as the horizontal gaze nystagmus test (HGN), OAR 257-25-020(l)(a), and the finger-to-nose test, OAR 257-25-020(l)(e), that the police may administer without Miranda warnings, regardless of whether circumstances are otherwise compelling.
This is a far cry from the not-so-distant DUII case law that characterized field sobriety tests as mere investigation requiring none of the protections outlined above. Today, not only must the police subjectively believe that they have probable cause to arrest for DUII before requesting sobriety tests, but they can apparently no longer advise of the consequences of refusing (which are unconstitutional) and instead, depending on the individual circumstances, may have to issue Miranda warnings before administering any test involving memory, perception or communication.
This court did not consider field sobriety tests a search under Article I, section 9, because they did not involve “a forbidden intrusion of the defendant’s person * * * [nor] a probing into defendant’s private life or thoughts,” and drivers at that time were not legally obligated to perform the tests. Niles, 74 Or App at 386-87. In State v. Lawrence, 117 Or App 99, 843 P2d 488 (1992), affirmed 320 Or 107, 880 P2d 431 (1994), we held that enactment of OKS 813.135, which requires all drivers to submit to field sobriety tests when there is reasonable suspicion of DUII, did not “alter our conclusion that the non-intrusive procedure of field sobriety tests does not constitute a search” under the Oregon Constitution. Id. at 102-03.
Government conduct is a “search” under Article I, section 9, when it “ ‘ “significantly impair[s] an individual’s interest in freedom from scrutiny, i.e., his privacy.” ’ "Nagel, 320 Or at 29, citing State v. Wacker, 317 Or 419, 425, 856 P2d 1029 (1993), and State v. Dixon/Digby, 307 Or 195, 211, 766 P2d 1015 (1988). Field sobriety tests are now considered searches because the police use them to create “a situation in which [the police can] observe certain aspects of the defendant’s physical and psychological condition that [they are] otherwise unable to observe.” Nagel, 320 Or at 31.
In its “reasonableness” analysis, the court in Nagel relied solely on the “probable cause/exigent circumstances” exception to the warrant requirement. 320 Or at *63131-32. The court did not consider a “consent” exception, even though ORS 813.135 mandates that all drivers on Oregon roads have impliedly consented to field sobriety tests. However, unlike the typical consent search, “implied consent” under ORS 813.135 only grants “legal” consent and not actual “physical” consent, i.e., doingthe act necessary to permit the search.
ORS 813.135 and ORS 813.136 were passed in response to State v. Greene, 68 Or App 518, 684 P2d 575, rev den 297 Or 601 (1984), overruled on other grounds State v. Panichello, 71 Or App 519, 692 P2d 720 (1984), in which we held that using a defendant’s refusal to perform field sobriety tests against him in court violated the right against compelled self-incrimination under Article I, section 12, of the Oregon Constitution. Id. at 526. In Greene, we reasoned that refusing field sobriety tests was “communicative” and “testimonial” and that the law at that time did not otherwise legally require drivers to submit to field sobriety tests. Id. at 522,525-26. By enacting those statutes, the legislature legally required drivers to take those tests and extended to them the doctrine of implied consent, which was already the basis for admitting “breathalyzer” test results. State v. Scott, 111 Or App 308, 312 n 4, 826 P2d 71 (1992).
The court in Trenary reasoned that ORS 813.135 and ORS 813.136 were not intended to protect citizens from illegal government conduct, but rather were designed to compel drivers to submit to field sobriety tests. 316 Or at 177-78. The statutes were aimed at forcing drivers who refused to perform the tests, and were not designed to create a suppression right for those who complied. Id. at 177.
See also State v. Fish, 321 Or 48, 51-53, 893 P2d 1023 (1995) (officer’s warning sufficient to advise defendant of consequences of refusing test under ORS 813.136, and defendant’s refusal therefore admissible under statute).
Article I, section 12, provides, in part:
“No person shall be * * * compelled in any criminal prosecution to testify against himself.”
Although the Fish majority did not include the “one-leg stand test,” OAR 257-25-020(l)(c), that test also involves “counting” and would probably be deemed testimonial.
I question.our conclusory statements in State v. Prickett, 136 Or App 559, 565, 902 P2d 621 (1995), rev allowed 322 Or 489 (1996), and Lawrence, 117 Or App at 104, that the setting becomes compelling “once the [field sobriety] tests have concluded.” As discussed below, whether a setting is compelling depends on the facts and circumstances of the individual case.