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OPINION & ORDER Stay You, LLC (“Plaintiff”) filed the above-captioned lawsuit toward H&M Hennes & Mauritz LP (“Defendant”) for trademark infringement and unfair competition. Currently in advance than the Court is Defendant’s Motion for Summary Judgment. (Mot., ECF No. 45.) For the following reasons, in accordance with the Order at ECF 77, summary judgment is DENIED. BACKGROUND Plaintiff and Defendant are every businesses that sell casual clothing. (Def. Rule 56.1 Statement

2, 3, ECF No. 50.) Plaintiff sells clothing via its Canada-based absolutely net webweb page and at in-man or woman sports with Plaintiff’s owner and principal, Joey Kidney. (Def. Response to Pl.’s Rule 56.1 Counterstatement of Add’l Material Facts (“Def. Response”)

The Tennessee Court of Criminal Appeals has upheld the conviction of Chester Lee Smith II for 1/three-offense DUI in a Hamilton County case.

Judge Doug Meyer presided over the trial.

This is the general opinion:

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEEAT KNOXVILLE

Assigned on Briefs July 24, 2002

STATE OF TENNESSEE v. CHESTER LEE SMITH, II

Direct Appeal from the Criminal Court for Hamilton County

No. 226581 Douglas A. Meyer, Judge

No. E2001-01099-CCA-R3-CD

August 20, 2002

A Hamilton County jury positioned the defendant accountable of DUI, 1/three offense. On attraction, the handiest hassle is whether or not or now no longer the trial court docket erred in now not allowing the defendant to offer testimony from a community health department nurse regarding the health department’s techniques for storing and transporting blood samples, which is probably procured thru the community health department for reasons unrelated to blood alcohol sorting out. We affirm the judgment of the trial court docket.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

Joe G. Riley, J., introduced the opinion of the court docket, in which David H. Welles and Jerry L. Smith, JJ., joined.

Ardena J. Garth, District Public Defender; Melanie R. Snipes, Assistant District Public Defender (at trial); and Mike A. Little, Chattanooga, Tennessee (on attraction), for the appellant, Chester Lee Smith, II.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; William H. Cox, III, District Attorney General; and Thomas E. Kimball, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Officer Randy Poland of the Chattanooga Police Department determined the defendant smelled

of alcohol even as he stopped the defendant for speeding at 3:00 a.M on November 7, 1998. The defendant denied ingesting alcohol and knowledgeable Officer Poland a friend had spilled “Bacardi and rum” on him.[1] According to Officer Poland, the defendant refused to perform the one-leg stand situation sobriety test or to rely backward. The officer located the defendant step out of line and capture his balance as he completed the walk-and-turn situation sobriety test. Based on his observations, Officer Poland arrested the defendant for DUI.

The defendant agreed to a blood alcohol test. Officer Poland transported the defendant to a medical institution in which a technician drew the defendant’s blood. Officer Poland then placed the blood sample withinside the trunk of his patrol car, in which it remained for five days until Officer Poland took it to the TBI lab for sorting out. The test showed the defendant’s blood alcohol diploma to be .20%.

The defendant sought to offer the testimony of an LPN with the community health department regarding the health department’s regulations and techniques for storing and transporting blood samples, the reason of which changed into to attack the reliability of the defendant’s blood alcohol outcomes. He argued Tenn. Code Ann. § 55-10-410(a) requires that the procurement of blood samples for the reason of blood alcohol exams be completed under techniques hooked up thru the Department of Health. The trial court docket refused to allow the defendant to offer the LPN’s testimony to the jury, but the occasions finished a voir dire examination of her for the record.

The LPN testified health department techniques required blood samples to be moved to the laboratory interior a quick period of time. If a put off occurred, refrigeration changed into the most appropriate method of storage. She moreover stated the techniques called for samples to be covered from exposure to light, excessive vibration, and tough coping with, and the laboratory rejects specimens which is probably improperly transported. The LPN testified she stored blood samples in a shipment field withinside the occasion that they have been to be transported the same day; otherwise, she placed blood samples in a refrigerator. She stated she knew now no longer whatever about sorting out blood for alcohol content, did now not recognize if preservatives or anticoagulants have been in blood alcohol test tubes, and usually did now not recognize if the failure to examine her techniques would possibly have any effect on the sorting out of blood for alcohol content. The trial court docket held the LPN changed into now not licensed to testify about techniques for the sorting out of blood alcohol content.

An appellate court docket will now not contrary a tribulation court docket’s desire to admit or exclude evidence till the trial court docket has abused its discretion. See State v. Gilliland, 22 S.W.2nd 266, 270 (Tenn. 2000). It is withinside the discretion of the trial court docket to determine whether or not or now no longer proffered evidence is relevant. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). To be relevant, evidence need to have a tendency to make the life of any fact of impact to the strength of will of the movement more likely or plenty much less likely that it is probably without the evidence. Tenn. R. Evid. 401. Even relevant evidence “may be excluded if its probative fee is drastically outweighed thru the danger of unfair prejudice, confusion of the issues, or misleading the jury, or thru problems of undue put off, waste of time, or vain presentation of cumulative evidence.” Tenn. R. Evid. 403.

Initially, we emphasize that the defendant does now not contest the admissibility of the outcomes of his blood alcohol test in this attraction. He did now not contend at trial, and does now not argue on attraction, that the outcomes have been inadmissible for the state’s alleged failure to comply with Department of Health techniques. Instead, at trial he really sought, and on attraction now seeks, to attack the reliability of the outcomes thru putting in that the storage of the defendant’s blood sample did now no longer examine the health department techniques required at the community health department for the coping with of normal blood samples. However, the nurse explicitly stated she knew now no longer whatever about the techniques or requirements for sorting out blood for alcohol content. Given the ones circumstances, we can not end the trial court docket erred in refusing to allow the defendant to submit this testimony to the jury. Even if the proffered testimony have been relevant to the reliability of the defendant’s blood alcohol test outcomes, that relevance changed into moderate without more records outdoor the understanding of the proffered witness regarding the techniques or requirements for storing blood for blood alcohol exams. Further, due to the witness’s lack of knowledge of such techniques or requirements, there was a danger of false impression of the issues or misleading the jury which would possibly drastically outweigh the probative fee of the evidence.

In so ruling, we are aware about the constitutional right of the defendant to “present a safety which includes the right to offer witnesses favorable to the safety.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000) (citations omitted). However, this right isn’t always absolute; the defendant need to examine hooked up suggestions of procedure and evidence designed to assure every fairness and reliability. Id. (citing Chambers v. Mississippi, 410 U.S. 284, 295, 302, 90 3 S. Ct.1038, 35 L. Ed. 2nd 297 (1973)).

The defendant efficaciously contends the “procurement of a sample of a man or woman’s blood for making a [blood alcohol test]” need to be completed thru a certified man or woman “under techniques hooked up thru the department of health.” Tenn. Code Ann. § 55-10-410(a). This sub-phase of the statute relates to the “procurement” of the blood sample; it says now no longer whatever about its storage or specific requirements after the blood has been procured. The reason of this a part of the statute is to “guard the donor of the sample from being subjected to unhealthful conditions withinside the procurement of a blood sample and to restrict the donor from being subjected to unqualified people taking samples.” State v. Stowers, 649 S.W.2nd 607, 608 (Tenn. Crim. App. 1983); see moreover State v. Cleo Mason, C.C.A. No. 02C01-9310-CC-00233, 1996 Tenn. Crim. App. LEXIS 163, at *33 (Tenn. Crim. App. Mar. 13, 1996, at Jackson). In fact, the defendant does now not project the manner in which his blood changed into procured. The defendant has now not demonstrated the “techniques hooked up thru the department of health” concerning the treatment of blood alcohol samples after the blood has been properly procured. Furthermore, this court docket can not take judicial examine of the ones “techniques,” if in fact they do exist. Cleo Mason, 1996 Tenn. Crim. App. LEXIS 163, at *34.

For the ones reasons, we end the trial court docket did now not err in disallowing the proffered evidence. The judgment of the trial court docket is affirmed.

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