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State v. Whelan6/17/2004
der of suppression following their motion to dismiss.
31 The defendant relies upon Nahee, 155 Ariz. at 115, 745 P.2d at 173, for the proposition that because the State failed to timely appeal the suppression ruling, it became the "law of the case." In Nahee, a police officer with the Bureau of Indian Affairs, armed with a tribal warrant, arrested the defendant on the Yavapai Indian Reservation for a crime that had been committed off of the reservation. Id. at 115, 745 P.2d at 173. The police officer transported the defendant to Clarkdale and turned him over to the Clarkdale police. Id. Section 6.35 of the Yavapai Apache Code required the officers to return the defendant to the "Tribal Court for release to off-reservation authorities." Id. (emphasis in original). The officers failed to comply with this section of the code. Id. When the defendant was brought before the Yavapai County Superior Court, the court dismissed the State's case against the defendant for lack of jurisdiction. Id. In doing so, the court did not rule on any substantive issues. The State failed to timely appeal. Id.
32 Subsequently, the defendant submitted to the jurisdiction of the superior court. Id. Upon submitting to the jurisdiction of the court, the defendant filed a motion to suppress. Id. In his motion, the defendant argued that based upon the court's dismissal for lack of jurisdiction, he had been illegally arrested and the physical evidence obtained as a result of the illegal arrest should be suppressed. Id. The court granted the motion and the State dismissed the case without prejudice and appealed. Id.
33 On appeal, this Court explained that although the trial court erroneously dismissed the case for lack of jurisdiction, the ruling was the "law of the case" because the State failed to timely appeal. Id. at 115 n. 2, 745 P.2d at 173 n. 2. Although this explanation appears to be dicta, it was necessary because had jurisdiction been proper, the defendant's motion to suppress would have failed without further analysis. See id. at 115, 745 P.2d at 173.
34 The facts in Nahee are consistent with those in the present case. Here, the State moved to dismiss the case without prejudice so that it could appeal the trial court's suppression ruling. The State, however, did not appeal. When this Court decided Olcavage, there were no charges pending against the defendant. The time for appeal had expired. Therefore, the case was not pending at the time that the law was clarified. [FN8]
FN8. Although the first action was dismissed, the doctrine of "law of the case" applies because the State reindicted the defendant on the same charges that arose out of the same transaction or occurrence as the original indictment. See, e.g., Nahee, 155 Ariz. at 115, 745 P.2d at 173.
35 Once there has been a ruling adverse to the State and the case is dismissed, if the State then fails to appeal, the ruling becomes the "law of the case." The State cannot sit back, wait for the law to change, and then reinstate the charges. If the State believes that the trial judge erred or that the existing *1019 law was erroneous, it must protect its position by timely filing an appeal.
36 The State argues that even if the blood evidence was improperly admitted, the defendant was acquitted of Count 2 (BAC of 0.10 or more) and the evidence was not relevant to Count 1 (driving while impaired to the slightest degree). I disagree.
37 Reversal is warranted when inadmissible evidence is put before the jury and it results in prejudice to a defendant. See Celaya, 135 Ariz. at 256, 660 P.2d at 857. A defendant is prejudiced if it appears "reasonably possible" that the inadmissible evidence "might have materially influenced the jury." Id.
38 Here, the State was not able to prov
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