[50]*50UNIS, J.
On May 24, 1990, defendant was driving his Ford Bronco southbound on a public highway in Clackamas County. A deputy sheriff, who was driving in the opposite lane of travel from defendant, observed defendant’s vehicle swerve. The deputy turned around and signaled defendant to pull his vehicle to the side of the road. When the deputy approached defendant’s vehicle, he smelled alcohol, saw that defendant’s eyes were “bloodshot and watery,” and noticed a can of beer on the floor of the vehicle next to the driver’s seat. Defendant told the deputy that he had consumed “three beers.” The deputy asked defendant to step out of his vehicle and perform field sobriety tests. The deputy advised defendant that, if defendant refused to perform the field sobriety tests, his refusal could be used against him as evidence in court. Defendant refused to perform the tests. He was arrested and charged with the crime of driving under the influence of intoxicants (DUII), ORS 813.010.
Before trial, defendant moved to suppress evidence of his refusal to perform the tests. Defendant argued that the deputy did not comply with statutory requirements in advising defendant of the consequences of his refusal. Defendant also argued that the admission of his refusal to perform field sobriety tests violated his rights against self-incrimination under Article I, section 12, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. The district court granted defendant’s motion on both statutory and constitutional grounds.
Pursuant to ORS 138.060(3), the state appealed the district court’s order suppressing evidence of refusal. The Court of Appeals reversed the district court’s order and remanded the case for further proceedings. The court rejected defendant’s argument regarding the adequacy of the deputy’s advice of consequences, holding that the deputy’s words “ ‘substantially convey[ed]’ the necessary information” required by the statute. State v. Fish, 115 Or App 609, 613, 839 P2d 278 (1992) (quoting OAR 257-25-015(2)). The court also held that the admission of evidence of defendant’s refusal to perform field sobriety tests did not violate his rights against self-incrimination. Id. at 614. We allowed defendant’s [51]*51petition for review and now reverse the decision of the Court of Appeals and affirm the order of the district court.
Defendant challenges the admission of his refusal to perform the field sobriety tests on a number of grounds, both statutory and constitutional. We shall address defendant’s subconstitutional argument before considering his constitutional arguments. See State v. Stevens, 319 Or 573, 579, 879 P2d 162 (1994) (applying that methodology).
Defendant contends that the deputy failed to comply with ORS 813.135 and ORS 813.136 and that, therefore, evidence of defendant’s refusal to perform field sobriety tests should be suppressed. ORS 813.1351 requires that, before field sobriety tests are administered to a person whom a police officer reasonably suspects to be under the influence of intoxicants, the person “shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.” Those consequences are as follows:
“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 813.136.
In this case, the deputy testified that he “advised [defendant] that he had the right to refuse the field sobriety test; that if he did refuse the test, that could be used against him as evidence in court.” We conclude that the advice of consequences complied with ORS 813.135 and 813.136.2
[52]*52ORS 813.135 requires that a suspect be “informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.” No particular language is required by the statute. In this case, the significant difference between the language of the statute and the warning given to defendant is that the deputy stated that the refusal could be used against defendant “in court,” rather than “in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants.”
To determine whether the deputy’s advice of consequences complied with ORS 813.135, we must determine what the legislature intended by requiring police officers to give the advice of consequences. In State v. Trenary, 316 Or 172, 850 P2d 356 (1993), this court discussed the legislative purpose of the advice of consequences required by ORS 813.135:
“The main purpose of the [advice of consequences required by] ORS 813.135 was not to create a right, but to bring further pressure on suspected intoxicated drivers to take the field sobriety tests. The statute aimed to advise drivers who may be disposed not to perform the tests that, if they refused, [53]*53evidence of the refusal would be admissible, provided that they were warned of the consequences of the refusal.” Id. at 177 (emphasis in original).
This court further stated that the legislature’s reason for enacting ORS 813.135 and 813.136 was “to compel drivers to take field sobriety tests.” Id. at 177-78. In light of the purpose of the advice of consequences required by ORS 813.135, an officer’s advice of consequences complies with ORS 813.135 if it adequately informs the driver of the consequences of refusal so as to bring further pressure on the driver to perform the tests.
In this case, the advice of consequences given was no less effective in bringing pressure upon defendant than if the deputy had used the exact words of the statute. Under the facts of this case, we conclude that the warning given by the deputy sufficiently informed defendant of the consequences of refusal so as to comply with the requirements of ORS 813.135.
We turn now to defendant’s constitutional arguments. Defendant argues that the admission of his refusal to perform the field sobriety tests would violate his rights against compelled self-incrimination under the state and federal constitutions. We first consider defendant’s assertions under the Oregon Constitution. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (stating methodology).
Article I, section 12, of the Oregon Constitution provides in part:
“No person shall be * * * compelled in any criminal prosecution to testify against himself.”
The right against compelled self-incrimination applies “to any kind of judicial or nonjudicial procedure in the course of which the state seeks to compel testimony that may be used against the -witness in a criminal prosecution.” State v. Langan, 301 Or 1, 5, 718 P2d 719 (1986). Thus, to receive protection under the self-incrimination clause of Article I, section 12, a person’s statement or conduct must (1) be “testimonial” evidence, (2) be “compelled,” and (3) be evidence that could be used against the person in a criminal prosecution.
[54]*54We therefore must determine whether evidence of defendant’s refusal to perform field sobriety tests is “testimonial” evidence under Article I, section 12. For purposes of the right against self-incrimination, “testimonial” evidence is not limited to in-court testimony under oath. Rather, the label “testimonial” is simply shorthand for the type of evidence that is subject to the right against compelled self-incrimination. To understand the scope of the protection provided by the right against compelled self-incrimination, we examine the history and purpose underlying the right.
Article I, section 12, of the Oregon Constitution was based on Article I, section 14, of the Indiana Constitution of 1851. Charles Henry Carey, The Oregon Constitution 468 (1926). Those provisions are similar to provisions that appear in the constitutions of 48 states. John William Strong, ed., 1 McCormick on Evidence § 115, at 425 (4th ed 1992). Although the wording of the different constitutional provisions varies, the variations commonly are not considered to convey different meanings because the provisions share a common origin. John Henry Wigmore, 8 Wigmore on Evidence § 2263, at 378 (McNaughton rev 1961). The right against compelled self-incrimination was firmly established in the American colonies by the mid-eighteenth century. Leonard W. Levy, Origins of the Fifth Amendment 368-404 (1968). However, there is some indication that the right was recognized in the colonies as early as 1650. R. Carter Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 VaL Rev 763, 775 (1935). In 1776, a self-incrimination clause was incorporated into the Virginia state constitution, and seven other states followed suit shortly thereafter. Levy, Origins of the Fifth Amendment at 405-09. The Fifth Amendment to the United States Constitution, drafted in 1789, was based on those provisions of state constitutions. Id. at 422.
The right against compelled self-incrimination was imported to the United States as a part of the common law of England. Id. at 368. The right developed in England in the mid-seventeenth century. Id. at 301-32. The right against compelled self-incrimination had its roots in opposition to the oath ex officio, a procedure used by the ecclesiastical courts in England that required the accused, without having been [55]*55formally charged or informed of the identity of his or her accusers, to answer questions under oath, the purpose of which was to extract a confession. Id. at 47. Opposition to that inquisitorial procedure increased when it was later adopted by the courts of the Star Chamber and of the High Commission, which used the oath to enforce political and religious conformity with views of the crown. Strong, 1 McCormick on Evidence § 114, at 422. In 1641, in response to abuses whereby individuals were required to make the state’s case for them, the oath ex officio was abolished along with the courts of Star Chamber and of High Commission. Id. at 423. During the mid-1600s, the right against compelled self-incrimination was recognized at common law as well, in the form of the maxim, “nemo tenetur prodere seipsum” (“no man is bound to accuse himself’). Levy, Origins of the Fifth Amendment at 313-32.
Although the historical basis of the right against compelled self-incrimination has been subject to varying interpretations, compare Wigmore, 8 Wigmore on Evidence § 2250, at 291-92 (suggesting that the right developed exclusively as a response to lack of charging in Star Chamber) with Strong, 1 McCormick on Evidence § 115, at 424 (suggesting that the right was broader), it is clear that the right originated and continued to develop as a protection against inquisitorial methods of investigation and prosecution. This history has been reflected in the recognition that the right against compelled self-incrimination is instrumental in maintaining a fair balance between individual autonomy and the governmental interest in prosecuting alleged offenders. The right plays a significant role in our adversarial system of criminal justice: “[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and [the right against compelled self-incrimination] is its essential mainstay." Malloy v. Hogan, 378 US 1, 7, 84 S Ct 1489, 12 L Ed 2d 653 (1964).3 The right against compelled self-incrimination is one important component of our accusatorial system of criminal justice, which requires that an individual be presumed innocent until proven guilty, that the government has the burden to prove [56]*56an individual’s guilt beyond a reasonable doubt, and that the state shoulder the entire load in a criminal prosecution:
“Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent. * * * Under our system society carries the burden of proving its charges against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation. The law will not suffer a prisoner to be made the deluded instrument of his own conviction.” Watts v. Indiana, 338 US 49, 54, 69 S Ct 1347, 93 L Ed 1801 (1949) (Frankfurter, J.) (citations and internal quotation marks omitted). ■
Under Article I, section 12, of the Oregon Constitution, individuals may not be compelled to disclose their beliefs, knowledge, or state of mind to be used in a criminal prosecution against them. In offering an individual’s refusal to perform field sobriety tests into evidence, 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 the 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. Evidence of an individual’s refusal therefore communicates his or her state of mind. Facts giving rise to inferences, no less than direct statements, communicating an individual’s state of mind is evidence that is subject to the right against compelled self-incrimination. We therefore conclude that evidence of defendant’s refusal to perform field sobriety tests is “testimonial” evidence under the self-incrimination clause of Article I, section 12, of the Oregon Constitution.
Concluding that evidence regarding defendant’s refusal to perform field sobriety tests is “testimonial” does not end our inquiry, however. Article I, section 12, prohibits the state from compelling an individual to provide “testimonial” evidence. State v. Jancsek, 302 Or 270, 284-85, 730 [57]*57P2d 14 (1986). For the purposes of Article I, section 12, compulsion can take many forms. Some obvious examples are where an individual is on the stand, subject to contempt sanctions if he or she refuses to testify, see In re Jennings et al, 154 Or 482, 59 P2d 702 (1936) (right against compelled self-incrimination under Article I, section 12, applied in contempt hearing where individual refused to answer questions under oath), or where an individual is required to act by court order, see Shepard v. Bowe, 250 Or 288, 293, 442 P2d 238 (1968) (right against self-incrimination applied in context of court-ordered psychiatric examination). Another example of compulsion is custodial interrogation. See State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990) (right against self-incrimination applied in context of custodial interrogation). In addition, a statute may compel an individual to testify. See State of Oregon v. Hennessey, 195 Or 355, 245 P2d 875 (1952) (immunity statute compelled individual to testify in exchange for grant of immunity).4
Our compulsion analysis in this case focuses on a statute, namely ORS 813.136. ORS 813.136 provides that, if a person reasonably suspected by a police officer of DUII “refuses or fails to submit” to field sobriety tests, his or her refusal is admissible in a criminal or civil proceeding. Arguably, ORS 813.136 does not explicitly compel an individual’s refusal because it gives that person a “choice” — he or she may either perform field sobriety tests or have evidence of his or her refusal admitted in a civil or criminal court proceeding stemming from the allegations of DUII. The right against self-incrimination does not preclude the state from requiring an individual to make certain choices. See State v. Mende, 304 Or 18, 21, 741 P2d 496 (1987) (requiring a defendant to be cross-examined regarding matters asserted in a sworn affidavit submitted to the court did not violate Article I, section 12). But the mere fact that the state gives an individual a “choice” does not necessarily mean that the individual is not compelled to testify against himself or herself. For example, an individual cannot be required to take the stand in his or her own criminal prosecution because to do so would place the [58]*58individual in a “cruel trilemma.” The individual in such a situation has three “choices”: (1) to testify truthfully (risking self-incrimination), (2) to testify falsely (risking perjury), or (3) to refuse to testify (risking contempt). Although the individual ostensibly has a “choice” among any of those options, it is a Hobson’s choice because the individual is required to “choose” either to risk subjecting himself to punishment (perjury or contempt) or to engage in conduct that the state has no right to compel (produce incriminating testimony).
Thus, when an individual is given a “choice” between various courses of conduct, the determination of whether the “choice’ ’ constitutes compulsion depends on the nature of the options. 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.
As noted, ORS 813.136 provides defendant a “choice” between two courses of conduct: (1) to perform field sobriety tests or (2) to have evidence of his refusal to perform the tests be admitted against him. One choice — admission of “testimonial” evidence of defendant’s refusal — is a course of conduct that the state cannot compel. To determine whether that choice is compelled in violation of Article I, section 12, we must therefore consider the nature of defendant’s other option (i.e., performance of field sobriety tests).
In performing field sobriety tests,5 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(1) specifies nine tests approved by the Oregon State Police and the Board on Public Safety Standards and Training as “field sobriety [59]*59tests.” Under OAR 257-25-020(2), an officer may request that an individual perform some, all, or none of the tests. Defendant in this case did not perform any of the field sobriety tests. The state has not tried to differentiate between “testimonial” aspects and “non-testimonial” aspects of the tests. As proponent of the evidence of defendant’s refusal, the state has the burden, after appropriate objection has been raised, of establishing the admissibility of the evidence. See State v. Carlson, 311 Or 201, 208, 808 P2d 1002 (1991) (stating principle). When a police officer does not specify to an individual at the time the request is made which tests the individual will be required to perform, we must assume that a generic request to perform “field sobriety tests” constitutes a request that the individual perform all of the tests approved in OAR 257-25-020(1). Thus, for purposes of our analysis in this case, if any aspect of the field sobriety tests involves “testimonial” evidence, then the request that defendant perform the tests involves a request for testimonial evidence. See State v. Hickman, 273 Or 358, 540 P2d 1406 (1975) (issue not argued to trial court by losing party may not later be used as a basis for overturning decision of trial court). See also Strong, 1 McCormick on Evidence § 52, at 205-07 (discussing principle). For the following reasons, we conclude that evidence of an individual’s performance of at least some aspects of the field sobriety tests is classic “testimonial” evidence that cannot be compelled under Article I, section 12.
Under Article I, section 12, “testimonial” evidence is not limited to verbal statements of fact or belief. Rather, as explained above in connection with evidence of refusal, “testimonial” evidence includes any evidence of conduct communicating the individual’s state of mind.6
[60]*60Some 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(l)(b), (l)(f), (l)(h); answering questions relating to the individual’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). 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 tests are clearly “testimonial” under Article I, section 12, of the Oregon Constitution.
Because a refusal to perform field sobriety tests and the performance of such tests are both “testimonial,” defendant was compelled to testify against himself. ORS 813.136 required defendant to choose between two options, neither of which the state could compel defendant to take. The “choice” embodied in ORS 813.136 is even more illusory than the “choice” embodied in the paradigmatic “cruel trilemma.” ORS 813.136 created a “cruel dilemma” for this defendant. He could choose (1) to testify against himself by performing the field sobriety tests, or (2) to testify against himself by refusing to perform the tests.7 In other words, defendant was not given a choice as to whether he would incriminate himself, but only as to how he would incriminate himself. Because the state cannot compel defendant to provide either form of testimony, such a “choice” constituted compulsion under Article I, section 12, of the Oregon Constitution.
The statutory scheme of ORS 813.135 and 813.136 effectively eliminated defendant’s ability to invoke his right against compelled self-incrimination. Under that scheme, [61]*61defendant had no “choice” by which he could exercise his right against self-incrimination without that exercise being admitted as substantive evidence of guilt. For example, in response to a police officer’s request to perform field sobriety tests, if defendant were to say, “I am exercising my right to remain silent under Article I, section 12, of the Oregon Constitution,” that response would be treated as a refusal to perform the tests, and the refusal would be admissible as substantive evidence of guilt under ORS 813.135 and ORS 813.136. It is fundamental that the assertion of the right against self-incrimination cannot be considered as evidence of guilt. See State v. Wederski, 230 Or 57, 62, 368 P2d 393 (1962) (if the state may refer to a defendant’s exercise of the right against self-incrimination with impunity, the right is “meaningless”). By creating a scheme whereby defendant could not invoke his right against compelled self-incrimination, the automatic admission of defendant’s refusal to perform field sobriety tests under ORS 813.135 and 813.136 would violate Article I, section 12, of the Oregon Constitution.
Justice Graber’s dissent cites South Dakota v. Neville, 459 US 553, 103 S Ct 916, 74 L Ed 2d 748 (1983), for the proposition that “[t]o require the making of a choice between two courses of action is not the same as to compel either of the two courses of action.” 321 Or at 87. The dissent’s reliance on Neville is misplaced.
In Neville, the issue was whether the defendant’s refusal to submit to a blood-alcohol test that the police sought to administer after the defendant was arrested and given Miranda warnings was admissible under the self-incrimination clause of the Fifth Amendment. The United States Supreme Court held that the evidence did not violate the Fifth Amendment because the defendant’s refusal was not “compelled.” The Court’s reasoning was premised on the fact that “the State could legitimately compel the suspect, against his will, to accede to the test.” 459 US at 563. The Court stated:
“Given, then, that the offer of taking a blood-alcohol test is clearly legitimate, the action becomes no less legitimate when the State offers a second optica of refusing the test, with the attendant penalties for making that choice. Nor is this a case where the State has subtly coerced [the defendant] [62]*62into choosing the option it had no right to compel, rather than offering a true choice.
“* * * We hold, therefore, that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” Id. at 563-64.
Neville involved evidence of the defendant’s refusal to submit to a search, to which the police could lawfully compel the defendant to submit, as a search incident to a lawful arrest. The defendant in Neville did not challenge the state’s ability to compel him to take the test. Thus, the defendant’s choice was between submitting to a test that he had no right to refuse or suffering the consequences of refusal.
Although this case, like Neville, involves a refusal to submit to a search, see State v. Nagel, 320 Or 24, 31, 880 P2d 451 (1994) (administration of field sobriety tests constitutes a search), Neville is inapposite because of the “testimonial” nature of the search involved here. Unlike the “non-testimonial” blood-alcohol test in Neville, the type of evidence involved in defendant’s “choice” in this case as to both the performance of the field sobriety tests and the refusal is “testimonial.” Defendant is given a choice only between two ways of incriminatinghimself. The state has no legal right to compel either choice — i.e., the state has no right to compel defendant to testify against himself. Even the Supreme Court in Neville recognized that a choice between such “prohibited choices,” 459 US at 563, constitutes compulsion:
“Here, the State did not directly compel respondent to refuse the test, for it gave him a choice of submitting to the test or refusing. Of course, the fact that the government gives a defendant or suspect a ‘choice’ does not always resolve the compulsion inquiry. The classic Fifth Amendment violation-telling a defendant at trial to testify—does not, under an extreme view, compel the defendant to incriminate himself. He could submit to self-accusation, or testify falsely (riskingperjury) or decline to testify (risking contempt). But the Court has long recognized that the Fifth Amendment prevents the State from forcing the choice of this ‘cruel trilemma’ on the defendant. Similarly, [Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966),] cautioned that the Fifth Amendment may bar the use of [63]*63testimony obtained when the proffered alternative was so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer ‘confession.’ ” Neville, 459 US at 562-63 (citations omitted).
See also id. at 563 (“[n]or is this a case where the state has subtly coerced [the defendant] into choosing the option it had no right to compel, rather than offering a true choice”). Thus, even considering Neville,8 requiring the individual to choose from two options, both of which produce self-incriminating “testimonial” evidence, amounts to “compulsion.”
In sum, ORS 813.136 gives defendant a “choice” between performing field sobriety tests or having his refusal admitted against him. However, both available choices are self-accusatory, i.e., they require defendant to incriminate himself. Requiring an individual to choose between two options, neither of which the state could compel the defendant to take, constitutes compulsion under Article I, section 12.9
The evidence of defendant’s refusal to perform field sobriety tests in this case is compelled “testimonial” evidence. The self-incrimination clause of Article I, section 12, precludes such evidence from being admitted against defendant in this criminal proceeding.10 The district court properly excluded the evidence on that basis.
The decision of the Court of Appeals is reversed. The order of the district court is affirmed.