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State v. Whelan6/17/2004
law, can still qualify for collateral estoppel treatment. The issue here is different: it is whether the Olcavage case decided after the suppression order in the first proceeding required (or permitted) a "a new determination [in the second proceeding] ... in order to take account of an intervening change in the applicable legal context." Restatement (Second) of Judgments § 28(2) (emphasis added). There was no intervening change in Nahee. There was, as the dissent acknowledges, such an intervening change here. The § 28(2) exception has been expressly followed in Arizona. Irby Constr., 184 Ariz. at 109, 907 P.2d at 78. Thus, Nahee is clearly distinguishable on these grounds as well.
FN7. We likewise do not address whether an erroneous determination, without an intervening change in the law, is or is not a sufficient basis to reconsider an earlier decision under Rule 16.1(d). We do note, however, that "reliance upon law of the case does not justify a court's refusal to reconsider a ruling when an error in the first decision renders it manifestly erroneous or unjust." Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 279, 860 P.2d 1328, 1332 (App.1993). See also State v. Wilson, 207 Ariz. 12, 15, 9, 82 P.3d 797, 800 (App.2004) (same).
24 Third, as to the brief reference in Nahee to law of the case itself, the dissent candidly acknowledges that the "explanation appears to be dicta." Infra at 33. We agree with that assessment. The issue in Nahee was whether the exclusionary rule should apply to state authorities after an error by tribal authorities in applying a pre-trial tribal regulation. 155 Ariz. at 114, 745 P.2d at 172. The Nahee court made no attempt to analyze the issue of whether a prior ruling was binding in a subsequent case. The case contains one sentence of text and two sentences in a footnote that pertain to the issue.
25 In short, we do not find Nahee to be applicable precedent to the issue presented here.
Conclusion
26 For the foregoing reasons, and those set forth in the accompanying Memorandum Decision, we affirm Defendant's conviction and remand the matter to the trial court for resentencing consistent with this court's decision.
CONCURRING: ANN A. SCOTT TIMMER, Judge.
GARBARINO, Judge, dissenting.
27 The defendant was originally charged in Maricopa County Cause Number CR 2000-014594 with one count of DUI while his driver's license was suspended and one count of driving with a blood alcohol concentration of 0.10 or more within two hours of driving *1018 while his driver's license was suspended. Following the trial court's grant of his motion to suppress on the ground that the medical assistant was not qualified to draw blood under A.R.S. § 28- 1388(A), the State moved to dismiss the charges without prejudice. The trial court granted the State's motion and the resulting order of dismissal was never appealed.
28 Approximately seven months later, Olcavage was decided. 200 Ariz. at 582, 30 P.3d at 649. The thrust of that decision was to validate the status of the medical assistant drawing the defendant's blood as one qualified to draw blood within the meaning of A.R.S. § 28-1388(A). Id. at 588, 30 P.3d at 655. Olcavage clearly made the trial court's first suppression ruling incorrect.
29 Following Olcavage, the State re-filed the charges. The defendant filed a motion to dismiss Count 2 of the indictment, arguing that the judge was bound by the ruling in the first case, Maricopa County Cause Number CR 2000- 014594.
30 The first issue is whether the doctrine of collateral estoppel precluded the trial judge from reconsidering the suppression order entered in Maricopa County Cause Number CR 2000-014594. It must be remembered that the State never appealed the or
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