State v. Fish

*64 GILLETTE, J.,

concurring in part and dissenting in part.

We are called upon once again in this criminal case to assess the scope of the protection provided by Article I, section 12, of the Oregon Constitution. Regrettably, the majority misunderstands the question presented and therefore gives the wrong answer. I therefore feel required to dissent.

Let me first note where I agree with the majority:

(1) The advice given by the officer in this case was adequate to apprise the suspect of the consequence of the suspect’s refusal to take the field sobriety tests. The majority’s analysis on this subject is complete and correct.

(2) The statutory and regulatory scheme under scrutiny in this case is one that attempts to force a suspect to follow a course of action by giving that suspect a range of choices, with the expectation that the suspect will find the legislatively-preferred choice (in this case, the taking of field sobriety tests) the least onerous alternative. The general parameters of the pertinent inquiry in such a case under Article I, section 12, of the Oregon Constitution, are as described by the majority: The legislature may not require the making of a choice if each of the proffered “choices” is one that the legislature could not, standing by itself, constitutionally require.

(3) Finally, the peculiar procedural posture of this case permits the majority to decide the case on a relatively narrow ground, viz., whether any of the field sobriety tests is “testimonial.” My agreement with this last proposition, however, does not mean that I agree that any one of the field sobriety tests is, in fact, testimonial, or that I agree that, even if one or more tests were testimonial, it would be appropriate in this case to avoid considering whether each of the other tests also is testimonial. 1

*65 The foregoing areas of agreement having been noted, I turn to the merits of case.

I begin with a note in passing. The majority attempts to show, as it must, that the taking of field sobriety tests is “compelled,” for constitutional purposes, by the statutory and regulatory scheme. I need not address that question because, as the majority recognizes, it also must show that the tests, even if “compelled,” also are “testimonial.”

When an individual is given a “choice” among various courses of conduct, the determination whether imposing a requirement that the individual make that “choice” constitutes compulsion depends on the nature of the options. The constitutional rule is straightforward: Where every choice is a course of conduct that the state could not compel an individual to take, mandating by law that an individual make a “choice” among them constitutes compulsion under Article I, section 12. The question presented by this case thus narrows itself to this: Is each and every one of the choices encompassed by the options presented to defendants in ORS 813.136 a choice that the state cannot compel an individual to take? The majority, without any real analysis of the individual tests and, more particularly, of the verbal element in some of those tests, simply waves a wand over them and answers, “Yes.” The majority notwithstanding, the correct answer to that question clearly is: “No.”

ORS 813.136 provides defendant a choice between two courses of conduct: (1) to submit to the field sobriety tests or (2) to have evidence of his refusal to submit be admitted against him. Taking the majority’s point that a refusal to submit to field sobriety tests constitutes “testimonial” evidence, which the state cannot compel, in order to determine whether the use of evidence of defendant’s refusal would violate Article I, section 12, the court still must determine whether the nature of defendant’s other option, viz., performance of field sobriety tests, is similarly a course of conduct *66 that the state cannot compel. If it is, defendant would be entitled to prevail but, unless it is, he is not so entitled.

In performing field sobriety tests, 2 an individual is required to perform various physical and mental tasks that are designed to elicit responses that demonstrate whether the individual is under the influence of intoxicants. See ORS 801.272 (field sobriety test is “a physical or mental test * * * that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance or a combination of intoxicating liquor and a controlled substance”). OAR 257-25-020 specifies nine tests approved by the Oregon State Police and the Board on Public Safety Standards and Training as “field sobriety tests.” The majority, with no real explanation, announces that certain of those tests are testimonial and then, having declared victory, quits the field. The majority is, in my view, wrong.

Under Article I, section 12, “testimonial” evidence is not limited to verbal statements of fact or belief. Rather, “testimonial” evidence includes any evidence of conduct that significantly communicates the defendant’s state of mind. 3

The law recognizes an essential difference between certain types of evidence that it deems to be nontestimonial and other types of evidence that either are or may be testimonial. The class of evidence of the first type includes evidence that commonly is referred to as “physical” evidence.

Both state and federal cases have recognized that physical evidence of condition or identity is not testimonial. *67 Fingerprints, line-ups, handwriting and voice exemplars, blood samples, and even compelled in-court behavior by an accused tending to increase the likelihood of identification by a key witness, are all nontestimonial in nature. The current test, in the federal context, is stated in Pennsylvania v. Muniz, 496 US 582, 588-95 , 110 S Ct 2638 , 110 L Ed 2d 528 (1990), a case involving the issue whether there were testimonial aspects to a particular Pennsylvania field sobriety test. The Supreme Court of the United States there set forth the relevant analysis, which I understand to be equally apt under Article I, section 12, of the Oregon Constitution:

“The Self-Incrimination Clause of the Fifth Amendment provides that no ‘person * * * shall be compelled in any criminal case to be a witness against himself.’ Although the text does not delineate the ways in which a person might be made ‘witness against himself,’ cf. Schmerber v. California, 384 US 757, 761-762, n 6 [, 16 L Ed 2d 908 , 86 S Ct 1826 ] (1966), we have long held that the privilege does not protect a suspect from being compelled by the State to produce ‘real or physical evidence.’ Id., at 764 [, 16 L Ed 2d 908 , 86 S Ct 1826 ]. Rather, the privilege ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.’ Id., at 761 [, 16 L Ed 2d 908 , 86 S Ct 1826 ], ‘[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a “witness” against himself.’ Doe v. United States, 487 US 201, 210 [, 101 L Ed 2d 184 , 108 S Ct 2341 ] (1988).”

(Footnote omitted.) The Court drew clear lines between the introduction of testimonial evidence against the accused, and the introduction of physical evidence. It held:

“We agree with the Commonwealth’s contention that Muniz’s answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to ‘the lack of muscular coordination of his tongue and mouth,’ * * * is not itself a testimonial component of Muniz’s responses to [the officer’s] introductory questions. In Schmerber v. California, supra, we drew a distinction between ‘testimonial’ and ‘real or physical evidence’ for purposes of the privilege against • self-incrimination. We noted that in Holt v. United States, 218 US 245, 252-253 [, 54 L Ed 1021 , 31 S Ct 2 ] (1910), Justice Holmes *68 had written for the Court that ‘ “[t]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material” ’ 384 US at 763 [, 16 L Ed 908 , 86 S Ct 1826 ], We also acknowledged that ‘both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.’ Id., at 764 [, 16 L Ed 2d 908 , 86 S Ct 1826 ], Embracing this view of the privilege’s contours, we held that ‘the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.’ Ibid.”

Id. at 590-91. The Court then cited instances in which it had applied that analysis to allow the admission of blood samples, Schmerber, 384 US at 765 , testimony derived from a compelled “lineup” and a compelled vocalization of a phrase provided by the police, United States v. Wade, 388 US 218 , 87 S Ct 1926 , 18 L Ed 2d 1149 (1967), a compelled handwriting exemplar, Gilbert v. California, 388 US 263 , 87 S Ct 1951 , 18 L Ed 2d 1178 (1967), and a compelled reading of a transcript in order to provide a voice exemplar, United States v. Dionisio, 410 US 1, 7 , 93 S Ct 764 , 35 L Ed 2d 67 (1973) (“voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said”).

To be sure, the Muniz Court concluded that the challenged question in the Pennsylvania field sobriety test — “Do you know what the date was of your sixth birthday?”, to which the defendant responded, “No I don’t” — elicited a testimonial communication of “an express or implied assertion of fact' or belief,” which placed the suspect in the “ ‘trilemma’ of truth, falsity, or silence.” Muniz, 496 US at 597 . The Court ruled that any response to such a question, “(whether based on truth or falsity) contains a testimonial component.” Ibid. But it is clear that the holding in that case was narrowly limited to the testimonial nature of the particular test; the Court fully endorsed the continued vitality of the *69 concept that physical evidence, evidence that revealed something about a suspect’s physical condition, was not “testimonial.”

Oregon decisions that have interpreted Article I, section 12, of our own constitution, have recognized and adhered to the same distinction. One of this court’s earliest decisions to rely on that provision noted:

“The constitutions of all the states of the Union, with the exception of New Jersey and Iowa, contain provisions against self-incrimination. There is a variation of wording in these constitutional clauses. The protection is from ‘testifying’, from ‘furnishing evidence’, or from ‘being a witness’. This difference in phrasing has not been considered important. What the framers of the various constitutions sought to accomplish was to place ‘beyond the reach of ordinary legislative alteration’ the privilege against self-crimination ‘as already * * * in the common law.’ ”

State v. Cram, 176 Or 577, 579-80 , 160 P2d 283 (1945) (citations omitted). The Cram court then proceeded to cite state and federal cases from other jurisdictions to interpret Article I, section 12. The court held:

“The accused, upon his arrest, may be required to do many things without having his constitutional rights against self-crimination invaded. For the purpose of identification he may be required to stand up in court; to appear at the scene of the crime; to put on a blouse to see if it fits him; to place a handkerchief over his face; to stand up and remove his glasses; to remove his coat and shirt and permit the jury to see scars on his body and to don a shirt introduced in evidence; or to exhibit his arm so as to reveal tattoo marks thereon, which a previous witness has sworn were there. He may also be fingerprinted, photographed and measured under the Bertillon system.”

Cram, 176 Or at 582-83 (citations omitted). Most pertinent to our present inquiry, the Cram court concluded that medical testimony as to the blood alcohol content of the defendant’s blood was not testimonial, but physical. Id. 176 Or at 593 .

Other Oregon court interpretations of the privilege have not materially deviated from the foregoing principle. See, e.g., State v. Black, 150 Or 269, 289 , 42 P2d 171 , 44 P2d 162 (1935) (requiring a defendant to exhibit his body is not *70 testimony about his body, but his body itself); State v. Carcerano, 238 Or 208, 215 , 390 P2d 923 (1964), cert den 380 US 923 (1965) (compelling defendant to arise); State v. Fisher, 242 Or 419 , 410 P2d 216 (1966) (handwriting exemplar could be taken without informing defendant of right to counsel); State v. Tracy, 246 Or 349, 361 , 425 P2d 171 (1967) (taking defendant’s trousers at arrest not testimonial); State v. Hughes, 252 Or 354 , 449 P2d 445 (1969) (handwriting not testimonial); State v. Nagel, 320 Or 24 , 880 P2d 451 (1994) (no expectation of privacy in voice exemplar). See also, State v. Miller, 2 Or App 353 , 467 P2d 683 , rev den (1970) (voice identification); State v. Brotherton, 2 Or App 157, 159-60 , 465 P2d 749 (1970) (production of physical evidence not testimonial); Kessler v. Cupp, 11 Or App 392 , 502 P2d 281 (1972) (donning a stocking cap not testimonial, citing federal cases); State v. Gardner, 52 Or App 663, 669 , 629 P2d 412 (1981) (breath test nontestimonial) (citing Schmerber, 384 US at 761 ); State v. Anderson, 53 Or App 246, 248-50 , 631 P2d 822 (1981) (refusal to submit to breath test admissible under Article I, section 12, of Oregon Constitution).

From the foregoing cases, I derive the following statement of Oregon constitutional law: Compelling a person to produce physical evidence concerning the person’s identity, appearance, or physical condition, and the subsequent use of that evidence against that person in a criminal proceeding, does not violate the defendant’s rights under Article I, section 12, of the Oregon Constitution, because such physical evidence is not “testimonial.” It follows that a legislative scheme that presents a person with a choice of courses of action, one of which involves surrendering physical evidence of the kind discussed, does not violate Article I, section 12, because one of the alternatives that the person may choose is not a constitutionally impermissible one. That rule is in accordance with the great weight of authority from around the nation. 4 It is frustrating not to have the majority even *71 acknowledge, much less analyze the pertinence of, the “physical evidence” rule.

I turn to a determination whether any of the field sobriety tests described in OAR 257-25-020(1) is “testimonial.” For the purposes of that inquiry, I shall discuss each of the tests separately and briefly. 5

*72 1. The horizontal gaze nystagmus (HGN) test. (OAR 257-25-020(l)(a)).

This test involves an officer’s asking a suspect to move the suspect’s eyes in a particular way, with the officer observing the manner in which the eyes move to determine if the movement is characteristic of impairment due to alcohol, controlled substances, or both. The observations are purely physical. The HGN test is not testimonial.

2. The walk-and-turn test. (OAR 257-25-020-(l)(b)).

This test involves having a suspect walk a line for a distance, then reverse course and walk back. The suspect is directed to count the steps as they are taken, but it is self-evident that the purpose of the counting simply is to require the suspect to conduct a second, rote activity as a possible source of distraction from the primary activity. This test is designed to investigate only gross motor physical activity, which the officer once again observes to determine whether the manner in which it is performed suggests impairment. The test is not testimonial.

3.The one-leg stand test. (OAR 257-25-020(l)(c)).

Unlike the walk-and-turn test, this test has a verbal component. Under the test, the suspect is asked to stand straight up, heels together, arms at sides. The officer then asks the suspect to raise one foot approximately six inches off the ground and, while in that position and looking at that foot, to count from 1001 through 1030. The exercise then is repeated with the other foot. This test does call on the suspect to report something that is in the suspect’s mind, viz., the suspect’s knowledge of the proper counting sequence of numbers from 1001 through 1030. However, for the reasons that follow, I do not believe that such a minimal inquiry into the suspect’s knowledge produces a testimonial result.

The physical part of the one-leg stand test clearly is not testimonial. But neither is the recitation part, when its purpose is considered. The one-leg stand test is designed to determine a suspect’s capacity to perform two tasks — one physical and one mental— while the officer determines from what he observes whether the way in which those tests are *73 performed indicates that the suspect should not be driving. In asking a suspect to recite numbers, the officer is using a societal commonplace (counting) that is totally fundamental, neutral, and nonspecific to the individual. Virtually every member of our society has been able to count since early childhood; an unimpaired person should be able to do so as if he or she were chanting a mantra. That is, it is the facility, rhythm, and cadence of the exercise that the officer is looking for, not whether this particular suspect knows that 1003 follows 1002.

Yet another way to look at the problem is to imagine the officer asking the suspect to recite something back to the officer that the officer dictates and that the suspect presumably is not familiar with beforehand — an exemplar. For example, the officer might ask the suspect to listen to and then recite back elementary Latin {“hie, haec, hoc”; “amo, amas, amat”) orto count by tens in German {“zehn, zwanzig, dreizig”). Asking a suspect to recite sequential Arabic numbers instead is a shorthand for the foregoing exercise, equally inoffensive to the constitutional protection at issue. I would hold that this test is not testimonial.

4. The Romberg balance test. (OAR 257-25-020(l)(d)).

Like the one-leg stand test, this test has a verbal component. Under the test, the suspect is asked to stand straight up, heels together, arms at sides, with eyes closed. The officer then asks the suspect various questions (the rule suggests the questions, “Where do you live?” and “What is your date of birth?”) while observing the degree of swaying that occurs as the suspect tries to do two things at once. If it appeared that the content of the answers that are given had anything to do with the test, there might at least be some issue as to whether the test were testimonial. However, it is clear from the language of the rule itself that the purpose of the test is to challenge the suspect physically, not to plumb the suspect’s mind. (I also note that, as to the two questions recommended by the rule, the officer routinely would be allowed to ask those questions in any event as a way of identifying the suspect, either at the scene or later at a booking facility.) I would hold that this test is not testimonial.

*74 5. The modified finger-to-nose test. (OAR 257-25-020(l)(e)).

Again, the test involves only physical dexterity. It is not testimonial.

6. The finger count test. (OAR 257-25-020(l)(f)).

This test involves asking the suspect to hold out a hand and touch each of the fingers in turn with the thumb, counting “1-2-3-4” and “4-3-2-1.” There is a verbal component, but it is like that in the walk-and-turn test. It is clear that the purpose of the test is to see how well the suspect can perform two simple activities at the same time. What we observed concerning the one-leg stand test applies equally here: The verbal component-simply is too minimal, too fundamental, and too impersonal to make it testimonial in the constitutional sense.

7. The alphabet test. (OAR 257-25-020(l)(g)).

Under this test, the suspect is asked to recite the alphabet, or any portion of the alphabet that the officer chooses. The only component of the test is a verbal one. This test comes closer to being testimonial than does any other test discussed thus far: It has no physical component to go with it, so it must be intended that the specific content of the suspect’s recitation will be used as evidence against the suspect. I nonetheless conclude that the test is not testimonial. As was true of the one-leg stand and finger count tests, the information that the officer elicits is not personal to the suspect, but rather is a common denominator of the culture. The alphabet commonly is learned at a very early age, and the capacity to recite it thereafter is completely unremarkable. 6 Similarly, the inability to recite it is less testimonial in any communicative sense than it is a portrayal of physiological impairment. I would hold that this test is nontestimonial.

*75 8. The counting test. (OAR 257-25-020(l)(h)).

Under this test, the suspect is asked to count any length of numbers, forward or backward, that the officer wishes. The analysis of this test is precisely the same as that of the alphabet test. The test is not testimonial, because the information sought is so fundamental and is so completely unrelated to the individual suspect. This point is perhaps best made with an illustration: An officer might, instead of using the specific test involved here, say to a suspect: “Please recite back to me the following numbers: 23, 6, 9, 44, 18.” Without question, the suspect’s ability to perform that test would not be testimonial, because the sole purpose of the exercise would be to test the suspect’s ability to hear, recollect, and report, not to plumb the suspect’s mind for information peculiar to the suspect. Asking a suspect to deal instead with a series of numbers in the manner directed by the present test really is no different, because the almost universal awareness of those numbers serves as a practical substitute for the officer’s specifically naming them. I would hold that this test is nontestimonial.

9. The internal clock test. (OAR 257-25-020(l)(i)).

Under this test, the suspect is asked to tell the officer when thirty seconds have elapsed. The officer compares the suspect’s estimate with the actual pas'sage of time. I would hold that this test, like the two that precede it, is not testimonial. Testing for a sense of the passage of such a brief period of time is not an exercise in peering into the thoughts of the suspect.

Based on the foregoing, I conclude that no part of the field sobriety tests established in OAR 257-25-020(1) violates defendant’s right not to be “compelled in any criminal prosecution to testify against himself’ under Article I, section 12, of the Oregon Constitution. It follows that use in a criminal proceeding of evidence of defendant’s refusal to take those tests likewise does not offend Article I, section 12. Tfie district court erred in ruling to the contrary. The majority, with its completely unimaginative and mechanistic “if the suspect opens his or her mouth, it’s testimonial” approach, errs as well.

*76 My view of the scope of the Oregon constitutional protection as not extending to defendant in the present circumstances requires me to turn now to the remaining question, which is whether all or a portion of the field sobriety tests violate defendant’s rights under the Fifth Amendment to the Constitution of the United States. Again, I would hold that there is no violation.

The only argument that reasonably could be made that any part of the field sobriety tests violates the Fifth Amendment would be based on the decision of the Supreme Court of the United States in Pennsylvania v. Muniz, which is discussed at length above. As noted, the Court in that case held that the answer by a suspect to a question concerning the date of the suspect’s sixth birthday was deemed by a bare majority of the Court to be testimonial. Muniz, 496 US 592 -600. Even the majority of the Court in that case appeared to recognize, however, that it is not every verbalization that becomes testimonial. Id. I have attempted, in my discussion of the various field sobriety tests in connection with Article I, section 12, of the Oregon Constitution, to explain why, in my view, the unique, simplistic, and fundamental nature of the verbalizations required of suspects under those tests did not rise to the “testimonial” level. Obviously, reasonable minds can differ, and the question is a close one. But I believe that the nature of the answers called for by the Oregon tests differs so completely from the personal information sought in Muniz that the Supreme Court of the United States would agree that the Oregon field sobriety tests do not implicate the Fifth Amendment. 7

The majority opinion in this case is wrong, and mischievously so. Whether it is a narrow opinion that merely causes havoc by its refusal fully to explain itself or is, instead, the harbinger of this court’s complete destruction of the ability of police officers to conduct field sobriety tests, the *77 unnecessary harm that it does to the public’s right to be protected from intoxicated drivers is deplorable. I dissent.

Van Hoomissen and Graber, JJ., join in this opinion.

I note especially the disservice performed by footnote 6 in the majority opinion, 321 Or at 59 n 6. The last sentence of that opinion states: “[W]e express no opinion regarding whether aspects of the field sobriety tests other than those we expressly address are ‘testimonial’ or ‘non-testimonial.’ ” As will be demonstrated below, that last sentence needlessly casts doubt on the continued validity of the use of purely physical field sobriety tests and places the entire process of prosecuting *65 driving under the influence cases under a cloud. As I believe my opinion elsewhere makes indisputably clear, some forms of physically testing a DUII suspect are absolutely permissible under Article I, section 12, of the Oregon Constitution, and its federal counterpart. There is no justification at all for the mischief that the majority does in this regard.

The field sobriety tests are described in OAR 257-25-020(1). The tests include: the horizontal gaze nystagmus (HGN) test; the walk-and-turn test; the one-leg stand; the Romberg balance test; the modified finger-to-nose test; the finger count; the alphabet; counting; and the internal clock. Id. They are discussed at greater length later in this opinion.

As the majority notes, the question whether field sobriety tests are testimonial presents an interesting issue concerning the boundary between “testimonial” and “non-testimonial” evidence. See, e.g., Charles Gardner Geyh, The Testimonial Component of the Right Against Self-Incrimination, 36 Catholic U L Rev 611 (1987) (discussing issue); Note, Self-Incrimination Issues in the Context of Videotaping Drunk Drivers: Focusing on the Fifth Amendment, 10 Harv J L & Pub Policy 631 (1987) (same); B. Michael Dann, The Fifth Amendment Privilege Against Self-Incrimination: Extorting Physical Evidence from a Suspect, 43 S Cal L Rev 597 (1970) (same). The question is not, however, nearly as difficult as the majority then proceeds to make it.

Cases so holding include South Dakota v. Neville, 459 US 553 , 103 S Ct 916 , 74 L Ed 2d 748 (1983), Newhouse v. Misterly, 415 F2d 514, cert den 397 US 966 , 90 S Ct 1001 , 25 L Ed 2d 258 (9th Cir 1969); Welch v. District Court of Vermont Unit, etc., 594 F2d 903 (2d Cir 1979); Hill v. State, 366 So 2d 318 (Ala 1979); Campbell v. Superior Court, 106 Ariz 542, 479 P2d 685 (1971); People v. Sudduth, 65 Cal 2d 543, 55 Cal Rptr 393, 421 P2d 401 , cert den 389 US 850 , 88 S Ct 43 , 19 L Ed 2d 119 reh den 389 US 996 , 88 S Ct 460 , 19 L Ed 2d 506 (1966); People v. Conterno, 170 Cal App 2d Supp 817, 339 P2d 968 (1959); People v. Dawson, 184 Cal App 2d Supp 881, 7 Cal Rptr 384 *71 (1960); Finley v. Orr, 262 Cap App 2d 656, 60 Cal Rptr 137 (1968); People v. Walker, 266 Cal App 2d 562, 72 Cal Rptr 224 (1968); People v. Municipal Court (Gonzales), 137 Cal App 3d 114, 186 Cal Rptr 716 (1982); State v. Durrant, 5 Storey 510 , 55 Del 510, 188 A2d 526 (1963); State v. Bock, 80 Idaho 296 , 328 P2d 1065 (1958); People v. Miller, 75 Ill App 3d 775, 31 Ill Dec 581, 394 NE2d 783 (1979); Alldredge v. State, 239 Ind 256, 156 NE2d 888 (1959); State v. Benson, 230 Iowa 1168 , 300 NW 275 (1941); State v. Holt, 261 Iowa 1089 , 156 NW2d 884 (1968); State v. Tiernan, 206 NW2d 898 (Iowa 1973); State v. Young, 232 NW2d 535 (Iowa 1975); State v. Vietor, 261 NW2d 828 (Iowa 1978); State v. Kaufman, 211 La 517, 30 So 2d 337 (1947); State v. Dugas, 252 La 345, 211 So 2d 285 (1968), cert den 393 US 1048 , 89 S Ct 679 , 21 L Ed 2d 691 (1969); State v. Smith, 359 So 2d 157 (La 1978); State v. Willis, 332 NW2d 180 (Minn 1983); State v. Meints, 189 Neb 264, 202 NW2d 202 (1972); People v. Thomas, 46 NY2d 100 , 412 NYS2d 845 , 385 NE2d 584 (1978), app dism 444 US 891 , 100 S Ct 197 , 62 L Ed 2d 127 (1979); People v. Haitz, 65 App Div 2d 172, 411 NYS2d 57 (1978); People v. Smith, 79 Misc 2d 172 , 359 NYS2d 446 (1974);People v. Mosher, 93 Misc 2d 179 , 402 NYS2d 735 (1978); State v. Flannery, 31 NC App 617, 230 SE2d 603 (1976); Westerville v. Cunningham, 15 Ohio St 2d 121, 44 Ohio Ops 2d 119, 239 NE2d 40 (1968); State v. Stanton, 15 Ohio St 2d 215, 44 Ohio Ops 2d 191, 239 NE2d 92 (1968); State v. Gatton, 60 Ohio App 192, 14 Ohio Ops 20, 20 NE2d 265 (1938); State v. Nutt, 78 Ohio App 336, 34 Ohio Ops 47, 46 Ohio L Abs 223, 65 NE2d 675 (1946); Columbus v. Waters, 69 Ohio L Abs 261, 124 NE2d 841 (1954); Commonwealth v. Robinson, 229 Pa Super 131, 324 A2d 441 (1974); Commonwealth v. Rutan, 229 Pa Super 400, 323 A2d 730 (1974); Commonwealth v. Jones, 242 Pa Super 471, 364 A2d 368 (1976); Com. v. Dougherty, 259 Pa Super 88, 393 A2d 730 (1978); The State v. Smith, 230 SC 164, 94 SE2d 886 (1956); State v. Miller, 257 SC 213, 185 SE2d 359 (1971); State v. Brean, 136 Vt 147, 385 A2d 1085 (1978); State v. Welch, 136 Vt 442, 394 A2d 1115 (1978); State v. Wall, 137 Vt 482, 408 A2d 632 , cert den and app dism 444 US 1060 , 100 S Ct 993 , 62 L Ed 2d 738 (1979); Gardner v. Commonwealth, 195 Va 945, 81 SE2d 614 (1954); Barron v. Covey, 271 Wis 10, 72 NW2d 387 (1955); Waukesha v. Godfrey, 41 Wis 2d 401 , 164 NW2d 314 (1969); State v. Albright, 98 Wis 2d 663 , 298 NW2d 196 , 26 ALR4th 1100 (1980).

Although the majority technically may choose, as it has, to decide this case solely by identifying certain tests that it believes are testimonial, this is one of those cases in which the narrower line to a decision is not the one that should have been followed. The importance of this issue to law enforcement, the courts, and the accused would have more than justified a complete review of the various tests, so that a great deal of subsequent litigation over individual tests could be avoided. I am required to review each test in any event, because I am of the view that none is testimonial. Whether I am correct with respect to those tests that I discuss, but that the majority does not discuss, now will have to abide the event.

It fairly may be argued that neither Arabic numerals nor the alphabet used in the English (and most other European) languages necessarily is “fundamental” to any person whose nationality or heritage is, for example, African or Asian. That is true, but it also is a complete, nonincriminating explanation for the suspect’s performance of the test.

At the same time, it would he disingenuous for me not to note in passing, and with the greatest respect and deference to the Court that is responsible for safeguarding federal constitutional rights, that I believe that Pennsylvania v. Muniz, 496 US 582 , 110 S Ct 2638 , 110 L Ed 2d 528 (1990), needs athoughtful second look. Even that Court, capable as it is, can produce the occasional clinker. See, e.g., State Land Bd. v. Corvallis Sand & Gravel Co., 429 US 363 , 97 S Ct 582 , 50 L Ed 2d 550 (1977) (overruling, by a vote of 6-3, Bonelli Cattle Co. v. Arizona, 414 US 313 , 94 S Ct 517 , 38 L Ed 2d 526 (1973), a case decided by a 7-1 majority less than four years earlier).