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2005-UP-133 - State v. Livingston

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Aundray Livingston,        Appellant.


Appeal From Beaufort County
Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No. 2005-UP-133
Submitted January 1, 2005 – Filed February 22, 2005


AFFIRMED


Robert William Mills, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for Respondent.

PER CURIAM:  This is an appeal from a felony driving under the influence conviction.  The primary issue is whether a hospital employee who obtained a urine sample from the defendant was properly trained and qualified under the provisions of our state’s implied consent law governing the collection of blood and urine samples from DUI suspects.  We affirm the trial court’s determination that the hospital employee was adequately qualified. 

Appellant also claims the trial court improperly admitted hearsay testimony.  We do not reach the merits of this issue, finding it was not preserved for our review.

FACTS/PROCEDURAL HISTORY

While driving down Highway 21 in Beaufort County, Aundray Livingston crossed the median and collided head-on with an oncoming car, killing its driver.  Livingston was injured, but he survived the crash and was taken to Beaufort Memorial Hospital for treatment.  The Highway Patrol officer investigating the accident requested a sample of Livingston’s urine. [1]   Harry Jenkins, an employee of the hospital, collected the sample from Livingston.  Laboratory analysis by SLED revealed the urine sample contained significant levels of THC, the pharmacologically active component of marijuana.  Livingston was later charged with felony DUI.

At trial, Livingston moved to exclude evidence of the urine test results, claiming the State failed to establish that Jenkins had the proper medical training prescribed under the implied consent statute (S.C. Code Ann. § 56-5-2950) to obtain urine samples. The trial court denied this motion and admitted the test results.  Livingston was subsequently convicted of felony DUI and sentenced to twenty-five years imprisonment. 

On appeal, this court found the record did not provide a sufficient factual basis to determine whether Jenkins was qualified to obtain the sample.  We remanded the case to the circuit court for a determination of whether Jenkins had the training required under the statute.

On remand, the State presented testimony from Geraldine Charlesworth, the former Director of Education at Beaufort Memorial Hospital.  Charlesworth testified she was responsible for clinical education of the hospital’s nursing and clinical staff.  She described the “competency and credentialing” process that each hospital employee must pass through after they are first hired and the system of evaluations all employees must undergo regularly thereafter.  With regard to Harry Jenkins’ qualifications, she testified that she had specifically and individually trained Jenkins, and that he was skilled in a number of competency areas, including specimen collection. [2] Charlesworth specifically noted that Jenkins’ training included instruction on the proper procedures for obtaining urine samples.  Based on this testimony, the trial court found as fact that Jenkins did have the requisite medical training to take Livingston’s urine sample.  The present appeal followed.

STANDARD OF REVIEW

A trial judge’s decision to admit or exclude evidence is within his discretion and will not be disturbed on appeal absent an abuse of discretion. Elledge v. Richland/Lexington Sch. Dist. Five, 352 S.C. 179, 185, 573 S.E.2d 789, 792 (2002).

LAW/ANALYSIS

I.  Jenkins’ Qualification to Obtain the Urine Sample

Livingston first argues the trial court erred in finding Harry Jenkins was qualified to obtain a urine sample under the provisions of the implied consent statute.  We disagree.

Under the implied consent statute, an arresting officer may direct that a urine sample be collected from a person arrested for DUI if that person is unable to submit to a breathalyzer test for medical reasons.  S.C. Code Ann. § 56-5-2950 (Supp. 2004).  The statute requires, however, that these samples be collected by qualified medical personnel: “Blood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility.” S.C. Code Ann. § 56-5-2950(a).  This requirement that blood and urine samples be obtained by qualified medical personnel serves the clear purpose of ensuring that a specimen collected is free from contamination that would diminish the accuracy or reliability of any test results obtained from the sample.

We find sufficient evidence supports the trial court determination that Jenkins was adequately trained to obtain a urine sample under section 56-5-2950.  As noted above, Geraldine Charlesworth presented detailed testimony regarding the competency and credentialing requirements all hospital employees must satisfy—skills that not only must be demonstrated at the outset of their employment, but must be reassessed on a regular basis by the hospital’s senior staff.  Moreover, Charlesworth testified specifically that Jenkins’ had demonstrated competency with regard to the proper procedures for collecting urine samples. [3]   Contrary to Livingston’s argument on appeal, there is no requirement that Jenkins be a licensed medical professional, as the statute specifically includes within its ambit “other medical personnel trained to obtain the samples in a licensed medical facility.”

II.  Hearsay Objection

Livingston also argues the trial court erred in admitting Charlesworth’s testimony regarding Jenkins’ employment records because it was hearsay.  We find this issue is not preserved.

Geraldine Charlesworth testified during the initial hearing on remand in June 2002.  Her testimony regarding Jenkins’ training and qualifications was based in part on her review of Jenkins’ employment files.  When the hearing was reconvened in September 2002, Livingston objected to Charlesworth’s testimony regarding—and reliance on—the employment records of Jenkins.  The trial court overruled this objection, finding it was far too late raise the matter and that Livingston had therefore waived any objection.

We concur in the circuit court’s assessment.  A contemporaneous objection is required at trial to preserve an issue for appellate review. State v. Johnson, 324 S.C. 38, 41, 476 S.E.2d 681, 682 (1996). The issue must be raised to and ruled on by the trial judge. State v. Williams, 303 S.C. 410, 411, 401 S.E.2d 168, 169 (1991). Failure to object when the evidence is offered constitutes a waiver of the right to object. State v. Black, 319 S.C. 515, 521-22, 462 S.E.2d 311, 315 (Ct. App. 1995).  Thus, Livingston is procedurally barred from raising this issue on appeal.

CONCLUSION

We find there is sufficient evidence to support finding that Harry Jenkins was qualified under section 56-5-2950 to obtain a urine sample from Livingston.  We do not address Livingston’s hearsay objection as it is not preserved for appellate review.  The order of the circuit court is therefore

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.   


     [1] See State v. Livingston, 327 S.C. 17, 488 S.E.2d 313 (1997) (reciting the facts relating to the accident).

     [2] Charlesworth specifically noted that Jenkins had been trained in the “universal cautions” of specimen collection, which includes the procedures to be followed in order to “protect[] the specimen against any contamination.”

     [3] Livingston further claims that Charlesworth’s testimony was insufficient because it referenced “Harry Jenkins” rather than the “Henry Jenkins” discussed in this court’s earlier opinion, State v. Livingston, Op. No. 2001-UP-475 (S.C. Ct. App. 2001).  This court’s reference to “Henry Jenkins” was clearly a scrivener’s error.  Indeed, the trial court noted at the hearing on remand that the “Harry Jenkins” referred to in Charlesworth’s testimony was “the individual referred to in [the Court of Appeals’] decision as Henry Jenkins.”