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State v. Livingston2/22/2005
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. 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.
Page 1 2 South Carolina DUI Attorneys
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