¶1(concurring specially).
¶2The comparison of field sobriety tests to the chemical test administered under the Implied Consent Law, SDCL 32-23-10 et seq., is like comparing apples to oranges. The former are for the purpose of establishing probable cause to arrest and can be administered upon suspicion only. The latter are for the purpose of determining guilt or innocence based upon statutorily established presumptions and arrest upon probable cause is a prerequisite to administration. The public acceptance of the chemical tests is so strong that when we recently approved the use of the preliminary breath test (PBT) as a field sobriety test, we pointed out the distinction between tests employed to determine probable cause for arrest and the usual implied consent tests and held the results of the PBT’s inadmissible as evidence of guilt. State v. Anderson, 359 N.W.2d 887 (S.D.1984).
¶3We are concerned here only with a refusal to cooperate with the administration of field sobriety tests. I view a refusal to cooperate to be admissible as evidence of consciousness of guilt, similar to cases involving: fabrication of evidence, State v. Thompson, 71 S.D. 319, 24 N.W.2d 10 (1976); false exeulpatation, United States v. Merrill, 484 F.2d 168 (8th Cir.1973), cert. denied, 414 U.S. 1077, 94 S.Ct. 594, 38 L.Ed.2d 562; and flight, State v. Cherrington, 34 S.D. 462, 149 N.W. 421 (1914); Marshall v. State, 305 N.W.2d 838 (S.D.1981).
¶4In State v. Neville, 312 N.W.2d 723, 726 (S.D.1981) (reversed on other grounds), we rejected consciousness of guilt as grounds for admission of evidence of refusal to take the chemical test under the implied consent laws. As we pointed out there, in most instances where evidence of consciousness of guilt is involved “[a] defendant is not exercising a statutory right ... whereas here there is an absolute right under South Dakota law to refuse to submit to the blood tests.” (Citation omitted.) There is no statutory ground for refusal to submit to the field sobriety tests. Therefore, there is no reason not to consider refusal as evidence of consciousness of guilt.