concurring in part; dissenting in part.
I agree with the majority that the warning given by the deputy complied with the requirements of ORS 813.135.
I dissent from the majority’s conclusion that the admission of a defendant’s refusal to perform field sobriety tests as substantive evidence of guilt in a criminal proceeding violates Article I, section 12, of the Oregon Constitution.1 I would hold that the trial court erred in granting defendant’s motion to suppress.
*78First, as the overwhelming majority of cases from other jurisdictions hold, taking field sobriety tests is not “testimonial.” All of the nine field sobriety tests authorized by OAR 257-25-020(1) are designed to obtain evidence of a person’s coordination, psychological condition, and physical capabilities. State v. Nagel, 320 Or 24, 36, 880 P2d 451 (1994). Several of the tests obtain that evidence in part by having the accused speak certain common words or numbers in a certain way, but it is not the content of that speech that the police are seeking. See Doe v. United States, 487 US 201, 108 S Ct 2341, 101 L Ed 2d 184 (1988) (a court order compelling witness to execute a consent form directing the disclosure of foreign bank records did not violate the Fifth Amendment, because the communication itself did not, explicitly or implicitly, relate a factual assertion or disclose information; the content had no testimonial significance). Indeed, the content is selected in advance by the police; nothing original is taken from the mouth, mind, or thought of the accused. Instead, the relevance of the verbalizations required by the tests lies in what they portray of the accused’s uncontrollable response to the presence of alcohol in his or her bloodstream — a physical circumstance that goes to the heart of a DUII prosecution. In this case, the police were not asking for permission to wring from defendant the innermost secrets of his mind; they were trying to determine the compatibility of his alcohol-impaired physical skills with the driving of a motor vehicle. The police had a right to do that, because the people of this state had a right to authorize them to do that.
Even when a field sobriety test requires a driver to speak in response to a direction such as “count backwards from 100 to 75,” or “recite the alphabet from A to Z,” taking the test is not “testimonial,” because it does not require the driver to reveal any meaningful knowledge, understanding, or thought process. In this sense, the request is no more “testimonial” than is requiring a defendant to make a voice exemplar for comparison purposes. See Nagel, 320 Or at 35 (no expectation of privacy in the quality of one’s voice, i.e., a voice exemplar); see also United States v. Dionisio, 410 US 1, 93 S Ct 764, 35 L Ed 2d 67 (1973) (compelling witness to furnish a voice exemplar did not violate Fifth Amendment); Annotation, Requiring Suspect or Defendant in Criminal *79Case to Demonstrate Voice for Purposes of Identification, 24 ALR 3d 1261 (1969 and Supp 1994). Within the meaning of Article I, section 12, none of the field sobriety tests reveals anything about a driver’s “state of mind.” None of the tests reveals anything about a driver’s “beliefs or knowledge.”2 It is no more ‘ ‘testimonial’ ’ than ordering a defendant to speak a paragraph of text to permit another person to comment on any similarity in characteristics between the speaker’s voice and that of another. In such cases, refusal to submit is a physical act rather than a communication, and for that reason it is not protected by the privilege.3 Evidence of refusal to take a potentially incriminating test is similar to other circumstantial evidence of consciousness of guilt, such as escape from custody and suppression of evidence. Defendant’s refusal to submit to field sobriety tests in this context is not “testimonial” within the meaning of Article I, section 12. I agree with Justice Gillette’s analysis on this point.
The following text from a recent opinion of the Court of Special Appeals of Maryland correctly states my view of this matter:
“[Appellant’s] performance of [reciting the alphabet and doing the finger-to-nose] tests was not compelled self-incrimination protected by the Fifth Amendment. * * * Because performance of these tests did not reveal any subjective knowledge or thought processes of the appellant, he did *80not thereby supply the State [with] any testimony or communication within the protection of his privilege against self-incrimination. This view accords with that reached by a vast majority of the courts which have considered the issue, (citing cases).” McAvoy v. State, 70 Md App 661, 523 A2d 618, 623 (1987).
Second, I agree with Justice Graber that defendant’s refusal to submit to field sobriety tests in this context is not “compelled” within the meaning of Article I, section 12. The majority advances no principled explanation for concluding that such a refusal is “compelled” in the constitutional sense.4
Third, ORS 813.135 provides in part:
“Any person who operates a vehicle upon * * * 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.” (Emphasis added.)
Whatever Article I, section 12, right a driver may have, the driver has waived that right by impliedly consenting to submit to field sobriety tests in this context. Cf. State v. Newton, 291 Or 788, 793-98, 636 P2d 393 (1981) (tracing the history of blood alcohol implied consent statutes). ORS 813.135 explicitly states that such consent has been given. Because defendant consented to submit to field sobriety tests, Article I, section 12, is not implicated. Moreover, simply because the driver has consented (under the implied consent law) to make that choice, and to face the statutory consequences, when the driver exercises his or her driving privileges in Oregon, the choice of refusing to take field sobriety tests is not “compelled.”
*81Fourth, because of the pervasive regulation to which the activity of driving has been subjected in this state, where that activity is concerned, a driver has a reduced level of constitutional protection.5 Cf. Mackey v. Montrym, 443 US 1, 17-18, 99 S Ct 2612, 61 L Ed 2d 321 (1979) (recognizing state’s “compelling interest in highway safety”); Bibb v. Navajo Freight Lines, 359 US 520, 523-24, 79 S Ct 962, 3 L Ed 2d 1003 (1959) (“The power of the State to regulate the use of its highways is broad and pervasive. * * * [Sjafety measures carry a strong presumption of validity”). ORS 813.135 and 813.136 are permissible limitations on the Article I, section 12, right of any person who drives on Oregon’s highways.
The administration of field sobriety tests and the use in court of a driver’s refusal to take those tests, therefore, does not, on its face, violate Article I, section 12, in the manner argued by defendant.
Although the majority did not address defendant’s arguments under the Fifth and Fourteenth Amendments, I would reach the same conclusion under the federal constitution. The Fifth Amendment’s protection applies only when the accused is compelled to make a testimonial communication that is incriminating. Baltimore Soc. Serv. v. Bouknight, 493 US 549, 554, 110 S Ct 900, 107 L Ed 2d 992 (1990). The challenged statutes and their implementing rules do not violate defendant’s Fifth and Fourteenth Amendments rights in the manner argued by defendant. Cf. Pennsylvania v. Muniz, 496 US 582, 110 S Ct 2638, 110 L Ed 2d 528 (1990); South Dakota v. Neville, 459 US 553, 562-64, 103 S Ct 916, 74 L Ed 2d 748 (1983).
The majority opinion in this case is very narrow in scope. It holds no more than that certain specific tests are “testimonial,” thereby making it unconstitutional to require a person accused of DUII either to consent to perform those specific tests or to have the person’s refusal used against the person in subsequent criminal proceedings. Regrettably, the *82majority opinion does not identify which tests that it concludes are “testimonial.” Because the majority opinion does not answer the question whether a driver’s refusal to take specific field sobriety tests that do not contain a verbal, i.e., “testimonial,” component will be admissible in evidence under ORS 813.136 at that driver’s DUII trial, see 321 Or at 59 n 6, law enforcement officers, litigants, lawyers, judges, and the legislature6 are left to speculate on the outcome of hundreds, if not thousands, of future DUII prosecutions that will arise before that question is answered by this court.
In the interim, I suppose that officers may be instructed by their superiors to decline to administer any field sobriety tests. See OAR 257-25-020(2) (officer has discretion to administer any, all, or none of the tests). Or they may be instructed to administer only field sobriety tests that contain no verbal component and, therefore, do not require a driver to speak.7 Before doing so, however, an officer should specifically advise a driver that none of the tests to be taken will require the driver to speak. That is to say, that none of the tests call for a verbal response. Generally, an officer always may testify at trial about what the officer observed at the scene of the stop, e.g., the driver’s erratic driving, unstable walking, the fumbling manner in which the driver produces his or her driver’s license at the officer’s request, odor of alcohol, bloodshot eyes, slurred speech, lack of coordination, etc. See OAR 257-25-010(l)(a) to (n) (acts, signs, or symptoms of probable impairment not listed and not administered as field sobriety tests). In every case, the officer should make a good record of what he or she has observed in gathering any such physical evidence.8
I join the dissents of Gillette, J., and Graber, J.The overwhelming majority of the courts that have considered the issue have concluded that admitting evidence of a refusal to submit either to a breath-alcohol or a field sobriety test does not violate the privilege against self-incrimination. See Annotation, Admissibility in Criminal Case of Evidence That Accused Refused to Take Test of Intoxication, 26 ALR 4th 1112 (1983 & Supp 1993); Donald H. Nichols, Drinking/Driving Litigation § 12:04 (1933 & Cumm Supp 1993); 4 Richard E. Erwin, Defense of Drunk Driving Cases § 31.04, .05[2] (3d ed 1993) (“Trend is clearly toward admissibility of refusal evidence”).
My research indicates that every recent Oregon Court of Appeals decision that has visited this question has held that refusal evidence is admissible in a DUII prosecution and that such use does not violate the defendant’s privilege against self-incrimination, because field sobriety tests are not testimonial in nature or because the context is not compelling. See, e.g., State v. Whitehead, 121 Or App 619, 623, 855 P2d 1149 (1993) (“In general, a driver’s performance of field tests are merely demonstrative and do not violate the driver’s rights under Article I, section 12, or the Fifth Amendment.”); State v. Schaffer, 114 Or App 328, 333, 835 P2d 134 (1992) (a request to perform field sobriety tests does not create compelling circumstances); State v. Scott, 111 Or App 308, 312, 826 P2d 71 (1992) (request to perform field sobriety tests does not create inherently compelling circumstances for Miranda purposes, as a matter of law), citing State v. Spencer, 305 Or 59, [70], 750 P2d 147 (1988) (“The basic concept embodied in the implied consent law is that one who drives a motor vehicle on the state’s highways impliedly consents to a breath test”); State v. Foster, 95 Or App 144, 149, 768 P2d 416 (1989) (performance of field sobriety tests is not subject to the proscription against compelled self-incrimination); State v. Gardner, 52 Or App 663, 669-70, 629 P2d 412, rev den 291 Or 419 (1981) (the introduction of evidence of a defendant’s refusal to take a sobriety test in the form of a blood or breath test does not violate his or her right against self-incrimination), citing Schmerber v. California, 384 US 757, 761, 86 S Ct 1826, 16 L Ed 2d 908 (1966) (Fifth Amendment privilege against self-incrimination only protects an accused from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature); State v. Medenbach, 48 Or App 133, 138-39, 616 P2d 543 (1980) (field sobriety tests are not testimonial in nature and do not violate privilege against self-incrimination).
The majority does not explain whether “state of mind” is the equivalent of “beliefs or knowledge,” or whether those are two different things. Neither concept is defined or explained by the majority.
The majority does not explain why the specific tests it has chosen are “testimonial,” rather than physical. The majority states only that “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.” 321 Or at 60. If one can say that there is “no doubt” about something, one ought to be able to explain in a paragraph precisely why there is no doubt. The majority here has not done so. For the reasons cogently explained by Justice Gillette in his dissent, it is not in the least clear to at least three members of this court why each of the tests selected by the majority constitutes a testimonial communication by the driver. How, for example, would asking a driver to read a series of numbers from a printed card disclose the driver’s “beliefs or knowledge?” How is that any different from requiring a defendant to read a passage from a printed script? State v. Nagel, 320 Or 24, 880 P2d 451 (1994); United States v. Dionisio, 410 US 1, 193 S Ct 764, 35 L Ed 2d 67 (1973). Would it make any difference if the officer had asked the driver to manipulate, rather than to simply repeat, a series of numbers (e.g., read only the euera-numbers on the card)? By its lack of analysis and dogmatic approach to those questions, the majority, mischievously, raises far more questions than it answers.
In Nagel, 320 Or at 44 (Van Hoomissen, J., concurring in part; specially concurring in part), I agreed -with the majority opinion that the administration of field sobriety tests constitutes a “search” within the meaning of Article I, section 9, of the Oregon Constitution. I now confess reservations about the correctness of that holding. In the context of this case, where defendant refused to submit to field sobriety tests, I am persuaded that no search occurred at all. Assuming that it is a “search,” presumably, a voluntary consent can justify the search.
For similar treatment of “seizures” under Article I, section 9, see State v. Holmes, 311 Or 400, 813 P2d 28 (1991) (upholding constitutional permissibility of certain kinds of stops on less than probable cause). See also State v. Ainsworth, 310 Or 613, 619, 801 P2d 749 (1990) (aerial surveillance of private property did not invade occupants’ privacy).
The majority opinion will leave the legislature without a clue as to what it may, or should, do to address the problems the majority holding creates.
In doing so, the state runs the risk that some future court will conclude that all of the current field sobriety tests are “testimonial,” although such a holding obviously is not compelled by the majority holding here.
Because this is an appeal from an order made before trial suppressing evidence, ORS 138.060(3), the state may proceed to trial in this case using its other evidence to attempt to prove DUII.