State v. House, 385 P.3d 1099

Defendant drove onto MAX light-rail tracks while intoxicated, became stuck, and was arrested for DUII (ORS 813.010) and reckless driving (ORS 811.140).
At the scene, defendant declined to answer questions about how much she had drunk, saying "I am not going to answer anything," and later received Miranda warnings; some pre‑Miranda answers were suppressed by the trial court as the defendant had equivocated and invoked her right to remain silent.
At trial, defendant testified she had consumed three nonalcoholic beers (O’Doul’s) and felt safe to drive; officer testified he smelled alcohol and that defendant had earlier said she did not feel safe to drive (admissible under the court’s suppression ruling).
On cross‑examination the prosecutor asked why defendant had not told the officer about the O’Doul’s at the scene; the court allowed the question over defendant’s objection that it commented on her invocation of the right to silence.
In closing and rebuttal the prosecutor repeatedly argued the jury should disbelieve the O’Doul’s story because defendant never mentioned it to the officer at the scene; defendant objected but the trial court overruled.
Jury convicted on the DUII charge; defendant appealed arguing the prosecutor’s question and argument impermissibly used her invocation of the right to remain silent to impeach her trial testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor may impeach defendant by pointing to her silence (failure to mention O’Doul’s) after she invoked right to remain silent	State: impeachment permitted because defendant "opened the door" by testifying she felt safe to drive and drank only nonalcoholic beer; prior inconsistent statements admissible	Defendant: prosecutor’s question and argument impermissibly commented on and invited jury to draw adverse inference from her invocation of the right to remain silent	Reversed as to DUII: court held prosecutor impermissibly relied on defendant’s silence (invoked right) to impeach credibility; that error was reversible
Whether defendant must request additional curative relief (instruction or mistrial) to preserve claim	State: failure to request curative instruction or mistrial waives claim	Defendant: objection preserved when trial court overruled her objections; no further request required	Court: not required to request curative instruction or mistrial after court overruled objections; error preserved

State v. Reineke, 266 Or. App. 299 (discussing standard of review and related appellate precedent)
State v. Ragland, 210 Or. App. 182 (prosecutor generally may not impeach a defendant by calling attention to invocation of right to silence)
Doyle v. Ohio, 426 U.S. 610 (Miranda warnings imply assurance that silence will not be used to impeach)
United States v. Hale, 422 U.S. 171 (due process bars comment on post‑arrest silence following Miranda)
State v. Smallwood, 277 Or. 503 (admission of exercise of constitutional rights is usually reversible where prejudicial inferences likely)
State v. Clark, 233 Or. App. 553 (permissible impeachment when defendant’s trial testimony implies she would have made exculpatory statements at time of arrest if given opportunity)
State v. Schiller‑Munneman, 270 Or. App. 22 (discusses whether right to silence under Article I, §12 applies outside custody or compelling circumstances)