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State v. Whelan6/17/2004
estoppel has not been directly answered in Arizona. There is a dispute among the jurisdictions about whether collateral estoppel applies to such an order, even if that order is final for purposes of appeal. Compare People v. Williams, 59 Ill.2d 557, 322 N.E.2d 461 (1975) (state collaterally estopped to relitigate suppression order in subsequent proceeding where state had a right, but chose not to appeal), with State v. Beezley, 752 S.W.2d 915 (Mo.Ct.App.1988) (holding that collateral estoppel does not apply to an unappealed suppression order even when there is a right to appeal); see also Restatement (Second) of Judgments § 13 cmt. b (1982) ("The fact that a trial order may be reviewable by interlocutory appeal ... does not necessarily mean that the matter resolved in the order should be treated as final for purposes of res judicata."). Although there is no Arizona case that directly addresses this issue, we need not reach it here as Arizona has adopted an exception to the doctrine of collateral estoppel that would otherwise preclude its application in this case.
15 The Restatement (Second) of Judgments § 28 provides as follows:
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
...
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context.
*1016 (Emphasis added.) This exception to the application of collateral estoppel has been expressly adopted in Arizona. Irby Constr. Co. v. Arizona Dep't of Revenue, 184 Ariz. 105, 109, 907 P.2d 74, 78 (App.1995) (quoting Comm'r v. Sunnen, 333 U.S. 591, 600, 68 S.Ct. 715, 92 L.Ed. 898 (1948)) (citing § 28(2) and holding that "[t]he Restatement's exception is appropriate when 'a judicial declaration intervening between the two proceedings ... change [d] the legal atmosphere as to render the rule of collateral estoppel inapplicable' ").
16 Application of the exception is appropriate here. See Barnes v. Outlaw, 192 Ariz. 283, 285, 964 P.2d 484, 486 (1998) ("[A]lthough we generally follow the Restatement absent statutes or case law to the contrary, we will not do so blindly.") The suppression order at issue was based on the premise that a medical assistant could not be a "qualified person" under A.R.S. § 28- 1388(A). After the suppression order, and the subsequent dismissal without prejudice, this court decided Olcavage. 200 Ariz. 582, 30 P.3d 649. That case provided that a phlebotomist was a "qualified person" under the statute. Id. at 588, 21, 30 P.3d at 655. In the context of this case, Olcavage clearly presented circumstances such that "a new determination [was] warranted in order to take account of an intervening change in the applicable legal context." Restatement (Second) of Judgments § 28(2)(b). Thus the trial judge was right in not applying collateral estoppel on these grounds. Having properly denied the collateral estoppel issue based on the intervening change in law, the trial judge then correctly applied that law and determined that a medical assistant, like a phlebotomist, was a "qualified person" under the statute. [FN6] The blood test results were properly admitted.
FN6. After Defendant was convicted and sentenced, this court decided State v. Carrasco, 203 Ariz. 44, 49 P.3d 1140 (App.2002), which held
that a medical assistant is a qualified person to draw blood in a DUI case under A.R.S. § 28-1388(A).
17 Accordingly, even if we were to conclude (and we expressly reserve this issue) that the
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