dissenting.
I would hold that Officer Zbinden adequately identified the field sobriety tests that he asked defendant to perform and that those tests were all nontestimonial under State v. Fish, 321 Or 48, 893 P2d 1023 (1995), and State v. Nielsen, 147 Or App 294, 936 P2d 374 (1996), rev den 326 Or 68 (1997). For that reason, I would reverse the trial court’s decision excluding evidence of defendant’s refusal to perform the tests. I dissent from the majority’s contrary decision.
The majority correctly describes the underlying legal principles. However, it does not recognize the extent to which the applicable administrative rules define what Zbinden meant when he asked defendant to perform “physical” tests. In light of those rules, the only tests that Zbinden could have asked defendant to perform would qualify as nontestimonial under Fish and Nielsen. Evidence of defendant’s refusal is therefore admissible under ORS 813.136.
To qualify as a “field sobriety test,” a test must be one that the Department of State Police has approved by rule and that permits an officer or a trier of fact to screen for probable impairment by intoxicating liquor, a controlled substance, or both. ORS 801.272. In August 1996, when Zbinden arrested defendant, the version of OAR 257-025-0020 in effect1 listed nine approved field sobriety tests; those nine, thus, were the only tests that Zbinden could have used. They are the same tests that Justice Gillette described in his dissent in Fish. 321 Or at 72-75 (Gillette, J., dissenting). The horizontal gaze nystagmus test does not require the person to speak and nothing else about it would communicate his or her thoughts, beliefs, or state of mind. The same is true of the walk-and-tum test. The one-leg-stand test, as described in the rule, requires the person to count from 1001 to 1030 while standing on one leg. The Romberg balance test asks the person to estimate the passage of 30 seconds. The modified finger-to-nose test does not require speaking. The finger-count, alphabet, counting, and internal clock tests all involve a person speaking.
*501Based on his statement to defendant, Zbinden could have administered the horizontal gaze nystagmus, walk-and-turn, and modified finger-to-nose tests as described in the rule. He might also have administered the one-leg-stand test without asking defendant to count and the Romberg balance test without asking defendant to estimate the passage of 30 seconds.2 None of those tests would have required defendant to speak or otherwise provide information that the Supreme Court has identified as testimonial. Any test that would have required defendant to provide such information would not have been a purely physical test. Zbinden’s warning, thus, did not place defendant in a Hobson’s choice in which his only options were to give the testimonial evidence of his refusal or the testimonial evidence of field sobriety tests. It was free of the problems that the court identified in Fish.
The majority is correct that Zbinden did not explicitly identify the physical tests that he wanted defendant to perform. Zbinden did not need to do so, because the administrative rule had already performed that task for him. Under ORS 813.135, defendant was required to perform the physical tests that the administrative rules required and that Zbinden would have described to him had defendant not refused the tests. Defendant declined to do any tests, and ORS 813.136 therefore makes evidence of the refusal admissible in this case. The majority would hold Zbinden to a level of specificity that the statute does not require and that serves no practical purpose because, when the officer instructs defendant on how to perform a test, the test will necessarily be identified and described. I would read the statute, the rule, and Zbinden’s actions in a way that would achieve the legislature’s purpose within the constitutional constraints that the Supreme Court identified in Fish. Because the majority does not do so, I dissent.
Edmonds and Armstrong, JJ., join in this dissent.The version of the rule that I discuss became effective on July 16,1996.
1 do not need to consider whether modifying those tests in that fashion would have affected their value for determining whether defendant was under the influence of intoxicants.