State v. Schumacher, 500 P.3d 698

Late-night single-car crash; officers found Schumacher a couple blocks away and suspected he was intoxicated.
Officer asked Schumacher to perform standardized field sobriety tests (FSTs); Schumacher twice refused after being warned refusal could be used against him and then requested a lawyer.
Schumacher was arrested for suspected DUII; hours later his breath test showed a .05 BAC (below legal limit) and he later spoke briefly with the officer and blamed another driver.
At trial the arresting officer testified about the refusals and stated that Schumacher requested a lawyer, then later testified Schumacher eventually talked "a little bit."
Defense moved for a mistrial after the jury heard the reference to invoking counsel; the court denied the motion, declined to give a curative instruction at that time, and Schumacher was convicted. On appeal the court addressed only the mistrial issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officer's testimony that defendant requested a lawyer required mistrial	The reference explained why the officer ended the interview and did not create a guilt inference; any harm could be cured by instruction	The invocation came in response to a request for potentially incriminating FSTs and likely led jurors to infer guilt	Reversed: reference jeopardized a fair trial; denial of mistrial was error because no cure was given and no evidence negated the guilt inference
Whether defendant’s decision not to propose a curative instruction forecloses relief	Defendant declined to propose one, so the court’s remedy was to await a proposed instruction	The court must decide whether to cure improper testimony; defendant’s refusal to propose an instruction does not waive relief	Court held it is the trial court’s duty to cure; defendant’s refusal to propose an instruction does not bar reversal
Whether later testimony that defendant later spoke with the officer and had a .05 BAC cured the prejudice	Later testimony that defendant talked and that BAC was low alleviated any inference of guilt	Later statements did not negate the inference that the earlier invocation signaled consciousness of guilt	Court held later testimony did not negate the prejudicial inference

State v. Swanson, 293 Or App 562 (Or. App. 2018) (reversed denial of mistrial where invocation of counsel during potentially incriminating questioning created obvious guilt inference)
State v. Veatch, 223 Or App 444 (Or. App. 2008) (invocation of counsel during request to take breath test created adverse inference; curative instruction proved insufficient)
State v. Osorno, 264 Or App 742 (Or. App. 2014) (prompt admonition to disregard was insufficient to negate inference that silence or refusal was tied to guilt)
State v. Williams, 49 Or App 893 (Or. App. 1980) (context may draw jury attention away from invocation; distinguished on facts)
State v. Halford, 101 Or App 660 (Or. App. 1990) (curative instruction given only at close of trial is untimely and may be ineffective)