1 The offi cer t hought thi s response to be unusual since Bacar di is, in fact, a rum. Althoug h we are relucta nt to take judicial notice of thi s fact, t his panel's reaction to the r esponse matches that of the offi cer's. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Bri efs J uly 24, 2002
STA TE O F TE NN ESS EE v . CHE STE R L EE S M ITH , II Direct App eal from the C riminal Cou rt for Hamilto n County

No. 226581 Douglas A. Meyer, Judge

No. E2001-01099-CCA-R3-CD August 20, 2002

A Hamilton County jury found the defendant guilty of DUI, third offense. On appeal, the sole issue is whether the trial court erred in not allowing the defend ant to presen t testimon y from a lo cal health departmentnurse regarding the health department’s procedures for storing and transporting blood samples, which are procured by the local health department for reasons unrelated to blood alcohol testing. W

e affirm the judgm

ent of the tr

ial court.

Tenn. R. A pp. P. 3 Ap peal as of R ight; Judg

ment of the C riminal Cou rt Affirmed

J OE G. R ILEY , J., delive

red th e op inion of the court, in which D AVID H. W ELLES and J ERRY L. S MITH , JJ., joined.

Ardena J. Garth, District Pub lic Defend er; Melanie R . Snipes, A ssistant Dis trict Public Defender (at trial); and Mike A. Little, Chattanooga, Tennessee (on ap peal), for t he appellan

t, Chester L

ee Smith, II.

Paul G. Summ

ers, Attorney

General and

Reporter; A

ngele M. Gre gory, Assis tant Attorne y General; William H. Cox, III , District A

ttorney General; and Th omas E. Kimball, Assistant D istrict Attor ney General, for the appellee, State of Tennessee.

OPINION

Officer Randy Poland of

the Chattan ooga Police

Departme

nt noticed th

e defendan

t smelled of alcohol when he stopped the defendant for speeding at 3:00 a.m on N o vember 7, 1998. The defendantdenied dr inking al cohol and told Offic er Poland a friend h ad spill ed “Bacar di and rum”
on him. 1 According t

o Officer Polan d, the d efendant re fused to pe

rform the one-leg stand field sobriety test or to count backward. The officer observed the defendant step out of line a

nd catch his-2-

balance as he performed the walk-and-tur n field sobri ety test. Ba sed on his ob servations, Officer Poland arrested the defendant for DUI.

The defendant agreed to a blood alcohol test. Officer Poland tran sported the d efendant to
ahos pi tal where a technician drew the defendant’s blood. Officer Poland then placed the bl ood sample in the trunk o f his patrol

car, where it remained

for five da

ys until Of

ficer Poland took it

to the TBI lab for testing. The test showed the defendant’s blood alcohol level t o be .20%.

The defendant soughtto present the testimony of an LPN with the local health department regarding the health de

partmen t’s reg ulations and procedures for storing and transporting blood samples, the purpose of which was to attack the reliability of the defendant’s blood alcohol results. He argued Tenn . Code Ann . § 55-10-41 0(a) require s that the pro curement o f blood sam ples for the purpose of blood al cohol tests b e perform ed under pro cedures esta blished by t

he Dep ar tment of Health. The trial court refused to allow the defendant to present the LPN's testimony to the jury, but the parties conducted a voir dire examination of her for the record.

The LPN testified health department procedures required blo od sample s to be mov ed to the laboratory

within a short period of

time. If a delay occur

red, refrig eration was the most ap propriate method of storage. She also stated t he procedur

es called fo

r samples t

o be protecte d from exp osure to ligh t, exc essive vibra

tion, and rough handling, and the la boratory rej ects specim

ens that are improperl y transported. The LPN testified she stored bloo d samples in a shipm ent box if th

ey were to be transported the same day; otherwise, she placed blood samples in a refrigerator. She stated she knew nothing about testing blood for alcohol content, did no t know if preservatives or anticoagula

nts were in blood alcohol test tubes, and generally did not know if the failure to follow her procedureswould have

any effec t on the te sting of bloo d for alcoh ol content. The trial cou rt held the LPN wa s not qualif

ied to testif

y about proc edures for the testing of blood alcohol content.

An appella te court will not r everse a trial co urt’s de cision t o admi t or exclude evidence unless the t

rial court h as abused its discretion. See State v. Gilliland , 22 S.W.2d 266, 270 (Tenn. 2000). It is within t

he discreti on o f the trial co urt to determ

ine whether

proffered

evidence is relevant. State v. Kennedy , 7 S.W.3 d 58, 68 (Te nn. Crim. App. 1999 ). To be r elevant, evide nce must have a tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable that it would b e w ithout the evidence. Tenn. R. Evid. 401. Evenrelevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence." Tenn. R. Evid. 403. Initially, we empha size that the defendant

does not con

test the admissibi lity of the results of his blood alcohol test in this app eal. He did no t contend at t

rial, and do es not argue

on appeal, that the results w ere inadmi ssiblefor the state’s alleged failu

re to comp ly with Dep artment of Health procedures

. Instead, at trial he merely sought, and on appeal no w seeks, to attack the reliability of the results by es tablishing t hat the storage o f the defendant’s bloo d sample f ailed to comply with the health departmen

t proceduresrequired at t he local heal

th dep artment f

or the handling of ordi nary blood samples. However, t he nurse exp licitly state d she knew nothing about the procedures or-3-

requireme

nts for testing blood for alcohol content. Given these circumstances, we cannot conclude the trial court er

red in refus ing to allow

the defend ant to subm

it this testim

ony to the ju

ry. Even if the proffered

testimony were relevan

t to the reliab ility of the

defendant ’s blood alco

hol test results, that relevance was slight without additional information out side the kno wledge of t he proffe red witness regarding the procedures or requirements for storing bloo d for blood alcohol test s. Further, due to the witness’s lack of knowledge of such procedures or requirements, there was a danger of
c onfusion of the issues or misleading the jury which would substantially outweigh the proba tiv e value of the evidence.

In so ruling, w e are mindful of the consti

tutional right of the defendant to "present a defense which includes the right to present witnesses favorable t o the defen se." State v. Brown , 29 S.W.3d 427, 432 (Tenn. 2000) (citations omitted). However, t his right is n ot absolute; the defend ant must comply with established rules of procedure and e vidence de signed to assure both fairness and reliability. Id. (citing Chambers v. Mississippi , 410 U.S. 284, 295, 302, 93 S. Ct.1038, 35 L. Ed. 2d 297 (1973))

. The defendant

correctly co nt ends the "procurement of a sample of a person's blood for making a [blood al cohol test] " must be p erformed by an author

ized per son "under proc edures established

by the department of health." Tenn. Code Ann. § 55-10-410(a). This sub-section of the statute relates to the " procurem

ent" of the b lood samp le; it says no thing about its storage o

r other requireme

nts after the bl ood has been procured. T

he purpose o f this p orti on of the st atute is to "protect the donor of

the sample

from being subjected to unhealthful conditions in the procurement of a blood sam

ple and to pr

ohibit the do nor from

being subje cted to unqu alified peo ple t akin g samples." State v. Sto wers , 649 S.W.2d 607, 608 (Tenn. Crim . App. 198 3); see also State v. Cle o Mason , C.C.A. No. 02 C01-9 310-CC-00233, 1996 Tenn. Crim. App. LEXIS 163, at *33 (Tenn. Crim. App. Mar. 1 3, 1996, at Jackson). I

n fact, the defe ndant does n ot challenge the manne

r in
w hichhis blood was procured. The defendant has not proven the "procedures establi shed by t h e departmentof health" relating to the treatment of b lood alcoho l samples af ter the blood

has been properly procured. Furthermore, this court cannot take judicial notice of these "procedures," if in fact they do exist. Cleo Mason , 1996 Tenn. Crim. App. LEXIS 163, at *34.

For these reason s, we conclu de the trial co urt did not er

r in disal l owing the p

roffered evidence. The judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE