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State v. Whelan6/17/2004
We address in this Opinion issues concerning the applicability of collateral estoppel and related doctrines to an unappealed suppression*1013 order in a case that was dismissed without prejudice and then refiled after an intervening change in the law.
Pertinent Factual and Procedural Background
2 On August 28, 2000, Richard Rome Whelan ("Defendant") was arrested for one count of DUI while his driver's license was suspended ("Count 1") and one count of driving with a blood alcohol concentration of 0.10 or more within two hours of driving while his driver's license was suspended ("Count 2"). Defendant was originally charged in Maricopa County Cause Number CR 2000-014594 for those offenses.
3 Defendant filed a motion to suppress evidence of the results of the blood test on the ground that the medical assistant who drew the blood was not a "qualified person" to draw blood under Arizona Revised Statutes ("A.R.S.") section 28-1388(A) (Supp.2003). [FN1] The trial court granted the motion to suppress the evidence on February 2, 2001, stating that "the blood draw was performed by a non-statutorily qualified person." Upon motion of the State, the court dismissed the case without prejudice on February 7, 2001. The order was not appealed.
FN1. This section was added by the legislature in 1998. 1998 Ariz. Sess. Laws, ch. 302, § 27. This Opinion refers to the current version of the statute, which is essentially the same as that in effect when Defendant was originally charged in CR 2000-014594.
4 On August 30, 2001, this court decided the case of State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 30 P.3d 649 (App.2001), which held that phlebotomists are "qualified persons" to draw blood in a DUI case under A.R.S. § 28-1388(A). Id. at 588, 21, 30 P.3d at 655. Based upon that decision, the State refiled the same two counts against Defendant in a new proceeding: CR 2001-017430. Defendant was reindicted on November 19, 2001.
5 Defendant then filed a motion to dismiss Count 2 of the indictment and to suppress the blood test results. He claimed that the judge was bound by the previous ruling of the court, alleging theories of collateral estoppel and "law of the case." In its response, the State argued this court's decision in Olcavage created a change in circumstances that allowed the earlier decision to be revisited. The State also argued that under Rule 16.1(d) of the Arizona Rules of Criminal Procedure ("Rule"), good cause existed which allowed the trial court to redetermine the issue previously decided by the first judge. The trial court denied Defendant's motion to dismiss Count 2 of the indictment and suppress the blood test results.
6 The matter proceeded to trial. Defendant was convicted on Count 1, but acquitted on Count 2. Defendant was subsequently placed on supervised probation for four years. This appeal and cross-appeal followed. [FN2]
FN2. We simultaneously file a Memorandum Decision which rules on other issues raised on appeal and by way of cross-appeal.
Discussion
7 Defendant argues the trial court erred when it denied his motion to dismiss Count 2 of the indictment and suppress the blood test results. He claims the trial court was precluded from reconsidering the previous order suppressing the evidence on the grounds of res judicata, the doctrine of law of the case, and Rule 16.1(d). The State responds that the issue is moot because Defendant was acquitted on Count 2. However, as Defendant points out, if the trial court erred in denying the motion to suppress the blood test results as well as the motion to dismiss Count 2 of the indictment, the issue is not moot. Because the results of the blood test could have influenced the jury in reaching its verdict on Count 1, [FN3] we must determi
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