Generally, as the state recognizes, Article I, section 12, forbids an order compelling "testimony" without an offer of transactional immunity. State v. Soriano , 68 Or. App. 642, 684 P.2d 1220 (en banc), aff'd and opinion adopted , 298 Or. 392, 693 P.2d 26 (1984) (per curiam). In Soriano , the defendants had refused to testify before a grand jury that was investigating a crime, invoking their rights under Article I, section 12, of the Oregon Constitution.

ORS 471.770 grants transactional immunity for compelled testimony in an OLCC proceeding. See State v. Soriano, 68 Or. App. 642, 659 n 17, 684 P.2d 1220, adopted and affirmed per curiam, 298 Or. 392, 693 P.2d 26 (1984) (under Oregon Constitution, only transactional immunity is permissible and statutory immunity of use and derivative use fails to meet constitutional requirements). Transactional immunity, at least as to criminal consequences, means that "the witness is immune from prosecution for any offense to which the immunized testimony relates."

This case does not present that issue or the issue discussed by the dissent in State v. Fish, 321 Or 48, 64-71, 893 P2d 1023 (1995) (Gillette, J., concurring in part and dissenting in part) — whether physical evidence concerning a person's identity, appearance, or physical condition implicates Article I, section 12. In State v. Soriano, 68 Or App 642, 646, 684 P2d 1220 (1984), affd and opinion adopted, 298 Or 392, 693 P2d 26 (1984), this court again examined the history of the constitutional right against self-incrimination and again concluded that the differences in various state constitutional provisions were inconsequential: "The constitutional language varies, but courts generally treat the basic principle as the same in all the states." 68 Or App at 646.

As an initial matter, the parties dispute the legal consequence of Upham's undisputed promise of immunity. Petitioner contends that, under State v. Soriano, 68 Or.App. 642, 684 P.2d 1220, aff'd and opinion adopted, 298 Or. 392, 693 P.2d 26 (1984), and State v. Vondehn, 348 Or. 462, 236 P.3d 691 (2010), regardless of the terms to which he and Upham agreed, he was entitled to transactional immunity, that is, that he was immune from prosecution for “any offense to which the statements relate.” Vondehn, 348 Or. at 469, 236 P.3d 691 (defining transactional immunity).

The right by its express terms constitutes an exclusionary rule that prohibits the use of testimonial evidence acquired as a result of its violation, but it also protects a person from being compelled in the first instance to furnish evidence. State v. Soriano, 68 Or App 642, 646 n 4, 684 P2d 1220, aff'd and opinion adopted, 298 Or 392, 693 P2d 26 (1984). Again, under the Oregon Constitution, the right is based not on deterring police misconduct but on preserving a person's freedom to decide whether to speak.

Even the state's utmost good faith is not an adequate assurance against nonevidentiary uses because there may be "non-evidentiary uses of which even the prosecutor might not be consciously aware." State v. Soriano, 68 Or. App. 642, 684 P.2d 1220, 1234 (1984) (only transactional immunity can protect state constitutional guarantee against nonevidentiary use of compelled testimony). We sympathize with the Eighth Circuit's lament in McDaniel that "we cannot escape the conclusion that the [compelled] testimony could not be wholly obliterated from the prosecutor's mind in his preparation and trial of the case."

State v. Kell , 303 Or. 89, 99, 734 P.2d 334 (1987) (In the context of custodial interrogation, "[d]efendant was entitled to pick and choose what he wished to talk about."). In State v. Soriano , 68 Or. App. 642, 684 P.2d 1220, aff’d , 298 Or. 392, 693 P.2d 26 (1984), we held that, distinct from the Fifth Amendment, the state can only extinguish an Oregonian’s right against self-incrimination under Article I, section 12, if it provides a full and adequate substitute—i.e. , transactional immunity:"We hold that Article I, section 12, of the Oregon Constitution requires transactional immunity as a substitute for the right not to testify against oneself.

Transactional immunity is immunity from prosecution for any offense to which the immunized testimony relates. State v. Soriano, 68 Or. App. 642, 644 n 3, 684 P.2d 1220, aff'd 298 Or. 392, 693 P.2d 26 (1984). Defendant is an Oregon State Police (OSP) Senior Trooper.

"The Court is persuaded that under the circumstances as presented to the Court, the Defendant was compelled to testify before the administrative personnel action hearing. "Under State v. Soriano, 68 Or. App. 642, 684 P.2d 1220, opinion adopted 298 Or. 392, 693 P.2d 26 (1984), transactional immunity is available to the Defendant, subject to Defendant having testified to, or presented incriminating material at that hearing." The court ruled that defendant's testimony had incriminated him with respect to 2 of the 5 charges, and it dismissed them.

We now address his argument on the merits. Although we may interpret our own state constitution to provide greater protection to our citizens than United States Supreme Court interpretations of the federal constitution provide, see Oregon v. Hass, 420 U.S. 714, 719, 95 S Ct 1215, 43 L Ed 2d 570 (1973); State v. Caraher, 293 Or. 741, 750, 653 P.2d 942 (1982); State v. Soriano, 68 Or. App. 642, 684 P.2d 1220, adopted 298 Or. 392 (1984), steps to adopt a stricter standard should be taken cautiously and be supported by reasoned analysis and sound policy considerations. For example, the Oregon Supreme Court's rejection of the federal Fourth Amendment approach to search and seizure law in State v. Caraher, supra, occurred only after an exhaustive analysis had satisfied the court that the desired need for clarification and uniformity in that area of the law was not being achieved by the federal courts and that, at least arguably, an adequate body of state law was available as a substitute source of precedent.