COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Hump hreys and Alston Argued at Lexington, Virginia

ROY EDWARD HALEY MEMORANDUM OPINION * BY v. Record No. 1951-15-3 CH IEF JUDGE GL EN A. HUFF NOVEMBER 8, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF ROANOKE COUNTY William D. Broadhurst, Judge Nanda E. Davis (The Davis Law Practice, on brief), for appellant. Elizabeth Kiernan Fitzgerald, A ssistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Roy Edward Haley (“appellant”) appeals his conviction of operating a motor vehicle while intoxicated, in viol ation of Code § 18.2-266. 1 Following a conditional guilty plea in the Circuit Court of Roanoke County (“ trial court”), appellant was sent enced to ninety days in jail, all suspended. On appeal, appellant contends that the trial court erred by ruling that registered nurses n eed not be designated by circuit court order because the plain read ing of the statute requires all professionals to be designated, drawing blood for DUI prosecutions requires specia lized knowledge, the only professionals designated by the Ro anoke County order at that time were registered nurses, and faili ng to abide by the statute is a matter of substan ce not procedure. For the following reasons, this Cour t affirms appellant’s conviction.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant was also charged with felony po ssession of methamphetamine, in violation of Code § 18.2-250. In accordance with a plea agreement, the trial court deferred disposition of that charge for two years pursuant to Code § 18.2-251.UNPUBLISHED- 2 - I. BACKGROUND On appeal, “we consider the evidence and a ll reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevaili ng party at trial.” Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows. On December 4, 2014, Officer Gary Haston (“ Haston”), a Roanoke County police officer, stopped appellant for driving erratically. After having appellant perform field sobriety tests, Haston placed appellant under arrest and tran sported him to a hospital where his blood was drawn by Alanna McWilliams (“McWilliams”), a re gistered nurse. The results of the blood analysis indicated that appellant’s blood contained 0.11 milligrams per liter of methamphetamine. As a result, appellant wa s charged with driving while intoxicated. Prior to trial, appellant moved to suppress the results arguing that their admission into evidence was a violation of Code § 18.2-268.5 be cause McWilliams, although a registered nurse, “was not designated by order of the [trial court].” In support of his argument, appellant offered

into evidence a trial court order entered August 16, 2000 listing those designated to withdraw blood pursuant to Code § 18.2-268.5, in which all th e persons listed had an “RN” after their name to indicate their status as registered nur ses. McWilliams’s name was not included in the order. Appellant further contended that under Snider v. Commonwealth, 26 Va. App. 729, 496 S.E.2d 665 (1998), the prosecution’s failure to us e a nurse designated by the trial court was a substantive rather than procedural failure and, thus, was not curable by substantial compliance. The trial court denied appellant’s motion a nd ruled that the evidence was admissible.

The trial court concluded that either McWilliams was authorized under a “rational interpretation of the statute,” or if she was not authorized, the designation requi rement was procedural and “the- 3 - draw substantially complied” with the statute. Construing the st atute’s plain language, the trial

court reasoned: Physicians, RN’s, LPN’s and gradua te laboratory technicians are publicly designated as qualified by their training and licensure to safely draw blood “according to recognized medical procedures” [(quoting Code § 18.2-268.5)]. However, ready access to these professionals may be limited in ru ral localities without a local hospital. By creating an additiona l group of technicians and nurses who could draw blood, the Genera l Assembly provides a larger pool of persons statewide who coul d safely draw blood to be used as evidence in these criminal investigations. Likewise, by allowing certain nurses and tec hnicians whose training had not risen to the level of licensure or diploma, but who in a physician’s medical judgment could safely draw blood, the General Assembly could assure both safety and avai lability in areas not immediately served by medical facilities. Consequently, the trial court ac cepted appellant’s conditional guilt y plea and convicted appellant of the offense of operating a motor vehicle whil e intoxicated, in violation of Code § 18.2-266. This appeal followed.

II. STANDARD OF REVIEW “We review decisions involving the admission of evidence for abuse of discretion by the trial court.” Jones v. Commonwealth, 50 Va. App. 437, 445-46, 650 S.E.2d 859, 863 (2007). “‘[A] trial court “by definition abuses its disc retion when it makes an error of law.”’ ‘In determining whether the trial court made an error of law, “we review the trial court’s statutory interpretations and legal conclusions de novo .”’” Auer v. Commonwealth, 46 Va. App 637, 643, 621 S.E.2d 140, 143 (2005) (first quoting Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998), then quoting Rollins v. Comm onwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001)).- 4 - III. ANALYSIS Appellant argues that the trial court abused its discretion when it admitted the results of the blood analysis derived from the blood samp le taken by McWilliams because under the plain meaning of Code § 18.2-268.5, McWilliams was requi red to be designated by an order of the trial court. Additionally, appellant urges that this Court should construe Code § 18.2-268.5 in appellant’s favor if it finds that the statute is ambiguous. Finally, appellant argues that the failure to have McWilliams designated by court order “is a matter of substance, not procedure,” which cannot be cured by substantia l compliance under Code § 18.2-268.11. 2 A. Plain meaning It is an “elementary rule of statutory construction that ev ery provision in or part of a statute shall be given effect if possible. ” Tilton v. Commonwealth, 196 Va. 774, 784, 85 S.E.2d 368, 374 (1955). When the language of a statut e is unambiguous, we are bound by the plain meaning of that language . Furthermore, we must give effect to the legislature’s inten tion as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statut e is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the st atute. Additionally, the plain, obvious, and rational meaning of a st atute is to be preferred over any curious, narrow, or strained construction. Hines v. Commonwealth, 59 Va. App. 567, 574, 721 S.E.2d 792, 795 (2012) (quoting Kozmina v. Commonwealth, 281 Va. 347, 349-50, 706 S.E.2d 860, 862 (2011)).

2 On brief, appellant also argues that the ev idence should not be admitted because he was not put on notice that individuals not listed in the trial court’s order could withdraw blood. This argument was not made before the trial court and will not be addressed by this Court on appeal. See Rule 5A:18.- 5 - Code § 18.2-268.5 is located w ithin Article 2 (§§ 18.2-266 to -273, Prosecution of the offense of driving a motor vehicle while intoxi cated (“DUI”)) of Chapter 7 of Title 18.2. In pertinent part, Code § 18.2-268.5 states: For purposes of this article, onl y a physician, registered nurse, licensed practical nurse, phlebot omist, graduate laboratory technician or a technician or nurse designated by order of a circuit court acting upon the recommendati on of a licensed physician . . . shall withdraw blood for the purposes of determining its alcohol or drug . . . content. (Emphasis added). Appellant contends that because “designated by order of a circuit c ourt” appears at the end of a list of individuals, “[t] he plain, obvious, and rational inte rpretation of this sentence structure is that the phrase at th e end qualifies the entire list, not just a small part of the list.” Notwithstanding, for the reasons explained below, this Court finds that the plain meaning of Code § 18.2-268.5 supports th e trial court’s decision. 1. Avoiding a superfluous reading “This Court will ‘interpret statutory langua ge, whenever possible, to avoid rendering other statutory language s uperfluous.’” Wilson v. Commonwealth, 66 Va. App. 9, 15, 781 S.E.2d 754, 757 (2016) (quoting Epps v. Comm onwealth, 59 Va. App. 71, 80, 717 S.E.2d 151, 155 (2011)). This Court “‘presume[ s] that the legislature chose, with care, the words it use[d]’ when it enacts a statute.” Id. at 15, 781 S.E.2d at 155 (alterations in or iginal) (quoting Rives v. Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248, 250 (2012)). This Court holds that under Code § 18.2-268.5, only nurses and technicians who are not “registered nurses,” “licensed practical nurses, ” “phlebotomists,” or “graduate laboratory technicians” must be designated by an order of th e circuit court to withdraw blood for use in the prosecution of a DUI offense. To adopt appellan t’s suggested interpreta tion would require this- 6 - Court to render “registered nurse,” “licensed practical nurse,” “phle botomist,” and “graduate laboratory technician” as s uperfluous language because every “technician or nurse” would have to be designated by a circuit court’s order. Conversely, by reading “d esignated by order of a circuit court” to modify only the immediately preceding clause “a technician or nurse,” the language in question is not rendere d superfluous or meaningless. Notwithstanding, appellant argues that if the General Assembly intended to only modify “technician or nurse,” it should ha ve inserted a comma after the listed term “graduate laboratory technician” or set that last phras e in a separate sentence. But “s tatutes are not to be construed by

strict and critical adherence to technical grammatical ru les, and . . . the true meaning, if clearly ascertained, must prevail, though contrary to the apparent gramma tical construction.” Washington v. Commonwea lth, 273 Va. 619, 627, 643 S.E.2d 485, 489 (2007) (omission in original) (quoting Harris v. Commonwealth, 142 Va. 620, 624, 128 S.E. 578, 579 (1925)). “[P]unctuation is not resorted to in the interp retation of statutes, unle ss the intention of the legislature cannot be asce rtained from the language of the statut e read in the light of legislation existing upon the subject . . . and other statutes in pari materia .” Id. (omission in original) (quoting Withers v. Commonwealth, 109 Va. 837, 840- 41, 65 S.E. 16, 17 (1909)). Accordingly, under the plain meaning of Code § 18.2-268.5, McWilliams was authorized, by reason of her status as a registered nurse, to withdraw a ppellant’s blood for use in his DUI prosecution.

2. The last antecedent doctrine Another rule of statutory construction, the last antecedent doctrine, supports this same result. This doctrine provides: [R]eferential and qualifying words or phrases, where no contrary intention appears, refer solely to the last antecedent

. 3 The last

3 An antecedent is defined as a “preceding th ing.” Antecedent, Black’s Law Dictionary (10th ed. 2014).- 7 - antecedent is “the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.” Thus a proviso 4 usually is construed to appl y to the provision or clause immediately preceding it. Alger v. Commonwealth, 267 Va. 255, 259-60, 590 S. E.2d 563, 565-66 (2004) (emphasis added) (quoting 2A Norman J. Singer, Sutherland on Statutory Construction § 47.33 (6th rev. ed. 2000)). In Alger, the Supreme Cour t interpreted Code § 18.2-308.2, 5 to determine whether the text of the statute permitted a convicted felon to possess a firearm in his or her residence. Id. at 257, 590 S.E.2d at 564. Appellant had argued that the Court should find that the qualifying phrase, “except in such person’s residence or the curtilage thereof,” modified both of the enumerated items preceding it, i.e. “(a) firearm or (b) stun weapon or taser,” because these items were of the same class and “conventions of lega l drafting require . . . that words preceding or following the enumeration shall apply to each item in the series.” Id. at 258, 590 S.E.2d at 565. In rejecting appellant’s argument, however, the Court applied the last antecedent doctrine, an “established rule[] of statutory construction.” Id. at 259, 590 S. E.2d at 565. Considering that under this rule, the qualifyi ng phrase only modifies the immediately preceding antecedent clause, the Court held that the “except clause” only modi fied “stun weapon or taser,” because this was the last antecedent preceding that qualifying phrase. I d. at 260, 590 S.E.2d at 566.

4 Proviso is defined as “[a] limitation, c ondition, or stipulation upon whose compliance a legal or formal document’s validity or appli cation may depend.” Pr oviso, Black’s, supra.

5 Relevant to the Court’s decision was the language of the 2001 version of Code § 18.2-308.2: “It shall be unlawful for (i) any pers on who has been convicted of a felony . . . to knowingly and intentionally possess or transport any (a) firearm or (b) stun weapon or taser as defined in § 18.2-308.1 except in such person’ s residence or the curtilage thereof . . . .” Alger, 267 Va. at 256, 590 S.E.2d at 564 (quoting Code § 18.2-308.2(A) (2001)).- 8 - Applying the doctrine in this case, the qualifying phrase “desi gnated by order of a circuit court,” only applies to the last antecedent cl ause, “a technician or nurse.” The clause “a

technician or nurse” is the last antecedent “that can be made an antecedent without impairing the meaning of the sentence.” See Alger, 267 Va. at 259, 590 S.E.2d at 566. As such, the qualifying phrase “designated by order of a ci rcuit court” only applies to “a technician or nurse” and not to every antecedent clause listed. Therefore, “des ignated by order of a circuit court” does not apply to the “registered nurse” antecedent. For this ad ditional reason, this Court finds that McWilliams was qualified to withdraw blood under Code § 18.2- 268.5 and, therefore, the trial court did not abuse its discretion in admitting the results into evidence. B. Rule of lenity Considering the last antecedent doctrine a nd giving effect to every word in Code § 18.2-268.5, this Court holds that the contested language of th e statute is not ambiguous. Accordingly, this Court does not reach appe llant’s invocation of the rule of lenity. Paduano v. Commonwealth, 64 Va. App. 173, 182, 766 S.E.2d 745, 749 (2014). C. Substantial compliance Because this Court finds that Code § 18.2-268.5 does not require that McWilliams be designated by court order, this Court does not r each appellant’s issue of substantial compliance.

IV. CONCLUSION For the foregoing reasons, this Court finds th at the trial court did not abuse its discretion when it admitted the blood analysis derive d from the blood sample taken by McWilliams. Accordingly, the ruling of the trial court is affirmed.

Affirmed.