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Unpublished Opinion No. 2005-UP-133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.”