State v. Swanson, 429 P.3d 732

Defendant was involved in a single-vehicle crash, taken to a hospital, and three hours later a state trooper questioned her; a consensual blood draw showed BAC .12% and defendant was arrested for DUII, reckless driving, and driving while suspended.
At trial the trooper initially testified defendant would not respond; on further inquiry the trooper related that defendant said she "didn't want to talk to [the trooper] without talking to her attorney."
Defense immediately objected and moved for a mistrial; the court denied the motion and declined to give a curative instruction, noting concern that an instruction might make matters worse.
The jury heard other testimony (including consent to blood draw) and convicted defendant on all counts.
On appeal the only contested question was whether denial of the mistrial (and refusal to issue a curative instruction) was an abuse of discretion because the trooper's testimony invited an impermissible adverse inference from defendant's invocation of counsel, depriving her of a fair trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admission of testimony that defendant said she would not talk without her attorney required mistrial	State: testimony was not prejudicial under circumstances; trial court well-positioned to judge impact; no harmless-error argument	Defendant: testimony improperly highlighted invocation of right to counsel, likely prompting jurors to infer guilt; mistrial or curative instruction required	Reversed: denial of mistrial was abuse of discretion; no curative instruction was given and jury likely drew impermissible adverse inference
Whether a curative instruction would have cured prejudice	State: trial court decided instruction might overemphasize and make matter worse	Defendant: court should have given or offered an appropriate curative instruction despite counsel declining to propose one	Court held that, in absence of any curative instruction, denial of mistrial was an abuse of discretion

State v. Osorno, 264 Or. App. 742 (Or. Ct. App.) (adverse inference from defendant's post-accident statement that she "didn't want to say anything incriminating" warranted concern and curative measures)
State v. Veatch, 223 Or. App. 444 (Or. Ct. App.) (request to consult attorney before breath test can prompt jury to infer guilt; curative instruction often inadequate)
State v. Wright, 323 Or. 8 (Or. 1996) (trial court best positioned to assess prejudicial impact and appropriate remedy)
State v. McClatchey, 259 Or. App. 531 (Or. Ct. App.) (prosecutor intent irrelevant; focus is effect on jury and likelihood of adverse inference)
State v. Evans, 211 Or. App. 162 (Or. Ct. App.) (court must decide whether to grant mistrial or cure effect of improper testimony)
State v. Schiller-Munneman, 359 Or. 808 (Or.) (left open whether a defendant's silence outside custody may be admitted substantively)