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OPINION & ORDER Stay You, LLC (“Plaintiff”) filed the above-captioned lawsuit closer to H&M Hennes & Mauritz LP (“Defendant”) for trademark infringement and unfair competition. Currently earlier than the Court is Defendant’s Motion for Summary Judgment. (Mot., ECF No. 45.) For the subsequent motives, according with the Order at ECF 77, precis judgment is DENIED. BACKGROUND Plaintiff and Defendant are each corporations that promote informal garb. (Def. Rule 56.1 Statement
2, three, ECF No. 50.) Plaintiff sells garb thru its Canada-primarily based totally certainly internet webweb web page and at in-individual sports activities with Plaintiff’s proprietor 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 1/3-offense DUI in a Hamilton County case.
Judge Doug Meyer presided over the trial.
This is the overall 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 located the defendant responsible of DUI, 1/3 offense. On appeal, the most effective trouble is whether or not or now no longer or now not the trial courtroom docket docket erred in no longer permitting the defendant to provide testimony from a network fitness branch nurse concerning the fitness branch’s strategies for storing and transporting blood samples, which might be procured through the network fitness branch for motives unrelated to blood alcohol checking out. We confirm the judgment of the trial courtroom docket docket.
Tenn. R. App. P. three Appeal as of Right; Judgment of the Criminal Court Affirmed
Joe G. Riley, J., brought the opinion of the courtroom docket docket, wherein 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 appeal), 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 decided the defendant smelled
of alcohol while he stopped the defendant for dashing at three:00 a.M on November 7, 1998. The defendant denied consuming alcohol and informed Officer Poland a pal had spilled “Bacardi and rum” on him.[1] According to Officer Poland, the defendant refused to carry out the one-leg stand state of affairs sobriety take a look at or to depend backward. The officer positioned the defendant step out of line and seize his stability as he finished the walk-and-flip state of affairs sobriety take a look at. Based on his observations, Officer Poland arrested the defendant for DUI.
The defendant agreed to a blood alcohol take a look at. Officer Poland transported the defendant to a hospital wherein a technician drew the defendant’s blood. Officer Poland then positioned the blood pattern withinside the trunk of his patrol car, wherein it remained for 5 days till Officer Poland took it to the TBI lab for checking out. The take a look at confirmed the defendant’s blood alcohol degree to be .20%.
The defendant sought to provide the testimony of an LPN with the network fitness branch concerning the fitness branch’s rules and strategies for storing and transporting blood samples, the purpose of which modified into to assault the reliability of the defendant’s blood alcohol effects. He argued Tenn. Code Ann. § 55-10-410(a) calls for that the procurement of blood samples for the purpose of blood alcohol checks be finished beneathneath strategies mounted through the Department of Health. The trial courtroom docket docket refused to permit the defendant to provide the LPN’s testimony to the jury, however the events completed a voir dire exam of her for the record.
The LPN testified fitness branch strategies required blood samples to be moved to the laboratory indoors a short length of time. If a take away occurred, refrigeration modified into the maximum suitable technique of garage. She furthermore said the strategies known as for samples to be protected from publicity to light, immoderate vibration, and hard managing, and the laboratory rejects specimens which might be improperly transported. The LPN testified she saved blood samples in a cargo subject withinside the event that they’ve been to be transported the identical day; otherwise, she positioned blood samples in a refrigerator. She said she knew now not some thing approximately checking out blood for alcohol content, did no longer apprehend if preservatives or anticoagulants had been in blood alcohol take a look at tubes, and typically did no longer apprehend if the failure to take a look at her strategies could likely have any impact at the checking out of blood for alcohol content. The trial courtroom docket docket held the LPN modified into no longer certified to testify approximately strategies for the checking out of blood alcohol content.
An appellate courtroom docket docket will no longer opposite an ordeal courtroom docket docket’s choice to confess or exclude proof until the trial courtroom docket docket has abused its discretion. See State v. Gilliland, 22 S.W.2d 266, 270 (Tenn. 2000). It is withinside the discretion of the trial courtroom docket docket to decide whether or not or now no longer or now not proffered proof is applicable. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). To be applicable, proof want to will be predisposed to make the existence of any truth of effect to the power of will of the motion much more likely or masses tons much less possibly that it might be with out the proof. Tenn. R. Evid. 401. Even applicable proof “can be excluded if its probative rate is notably outweighed through the threat of unfair prejudice, confusion of the troubles, or deceptive the jury, or through troubles of undue take away, waste of time, or useless presentation of cumulative proof.” Tenn. R. Evid. 403.
Initially, we emphasize that the defendant does no longer contest the admissibility of the effects of his blood alcohol take a look at on this appeal. He did no longer contend at trial, and does no longer argue on appeal, that the effects had been inadmissible for the state’s alleged failure to conform with Department of Health strategies. Instead, at trial he simply sought, and on appeal now seeks, to assault the reliability of the effects through installing that the garage of the defendant’s blood pattern did now not take a look at the fitness branch strategies required on the network fitness branch for the managing of regular blood samples. However, the nurse explicitly said she knew now not some thing approximately the strategies or necessities for checking out blood for alcohol content. Given those circumstances, we can’t give up the trial courtroom docket docket erred in refusing to permit the defendant to post this testimony to the jury. Even if the proffered testimony had been applicable to the reliability of the defendant’s blood alcohol take a look at effects, that relevance modified into mild with out extra statistics out of doors the information of the proffered witness concerning the strategies or necessities for storing blood for blood alcohol checks. Further, because of the witness’s lack of know-how of such strategies or necessities, there has been a threat of misconception of the troubles or deceptive the jury which could likely notably outweigh the probative rate of the proof.
In so ruling, we’re privy to the constitutional proper of the defendant to “gift a protection which incorporates the proper to provide witnesses favorable to the protection.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000) (citations omitted). However, this proper isn’t absolute; the defendant want to take a look at mounted hints of process and proof designed to guarantee each equity and reliability. Id. (mentioning Chambers v. Mississippi, 410 U.S. 284, 295, 302, ninety three S. Ct.1038, 35 L. Ed. 2d 297 (1973)).
The defendant correctly contends the “procurement of a pattern of a individual’s blood for making a [blood alcohol test]” want to be finished through an authorized individual “beneathneath strategies mounted through the branch of fitness.” Tenn. Code Ann. § 55-10-410(a). This sub-segment of the statute pertains to the “procurement” of the blood pattern; it says now not some thing approximately its garage or precise necessities after the blood has been procured. The purpose of this part of the statute is to “protect the donor of the pattern from being subjected to unhealthful situations withinside the procurement of a blood pattern and to limition the donor from being subjected to unqualified human beings taking samples.” State v. Stowers, 649 S.W.2d 607, 608 (Tenn. Crim. App. 1983); see furthermore 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 truth, the defendant does no longer assignment the way wherein his blood modified into procured. The defendant has no longer validated the “strategies mounted through the branch of fitness” regarding the remedy of blood alcohol samples after the blood has been nicely procured. Furthermore, this courtroom docket docket can’t take judicial take a look at of those “strategies,” if in truth they do exist. Cleo Mason, 1996 Tenn. Crim. App. LEXIS 163, at *34.
For those motives, we give up the trial courtroom docket docket did no longer err in disallowing the proffered proof. The judgment of the trial courtroom docket docket is affirmed.

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Bacardi 3D Hawaiian Shirt
Bacardi 3D Hawaiian Shirt

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