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State v. Livingston2/22/2005
Submitted January 1, 2005
AFFIRMED
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. 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. 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
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