# VIRGINIA:

In the Court of Appeals of Virginia on Tuesday 

### the 6th 

### day of September , 20 22

. Jordan Darrell Morris , Appellant, against Record No. 1194

- 21

- 2

Circuit Court No. CR21

- 1545

- 00F Commonwealth of Virginia , Appellee. Upon a Petition for Rehearing En Banc Before Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, Atlee, Malveaux, Athey, Fulton,

Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
On August 16, 2022 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on August 2, 2022, and grant a rehearing en banc on the issue(s) raised in the petition

. On co nsideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this Court. The mandate previously entered herein is stayed pending the decision of the Court en banc

. The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An elec tronic version of each brief shall be filed with the Court and served on opposing counsel. 1 A Copy,
Teste: A. John Vollino, Clerk original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court Deputy Clerk

1 The guidelines for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf.PUBLISHEDCOURT OF APPEALS OF VIRGINIA

Present: Judges Russell, * Ortiz and Raphael Argued at Richmond, Virginia

JORDAN DARRELL MORRIS OPINION BY v. Record No. 1194

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- 2 JUDGE STUART A. RAPHAEL AUGUST 2 , 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY

Randall G. Johnson , Jr. , Judge
H

. Pratt Cook, III ( Law Office of H. Pratt Cook, III , on brief), for appellant. Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee

. This case presents two questions of first impression concerning Virginia’s medical

amnesty statute , Code § 18.2

- 251.03 , which shields from arrest or prosecution those persons who seek emergency medical assistance because they are experiencing a drug overdose ( or who seek emergency medical assistance for others who are experiencing an overdose ) . First, suppose the defendant seeking emergency medical assistance subjectively believes he is suffering a drug overdose, but in fact he is not

. Is the defendant entitled to amnesty, or must the trier of fact be satisfied that the defendant, objectively , is having an overdose? We conclude from the statute’s plain langua ge that the General Assembly intended a subjective standard. Second, does drug

- induced suicidal ideation qualify as an “overdose” under the statute? We conclude that it does. While an “overdose” from drugs in common parlance may not

* Justice Russell participated in the hearing and prepared the dissent in this case prior to his investiture as a Ju stice of the Supreme Court of Virginia. PUBLISHED- 2

-

embrace the desire to kill oneself , the statu t e defines “overdose” as “ a life

- threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances. ” Code § 18.2

- 251.03 (A)

. A drug

- induced impulse to kill oneself is “a life

threatening condition” under that definition.
Because the circuit court erred in applying an objective standard to the defendant’s claim that he was seeking emergency medical care for his drug

- induced suicidal ideation, we vacate the drug

- posse ssion conviction and remand this case for the trial court to determine whether the defendant is entitled to medical

- amnesty immunity under the correct legal standard

. B ACKGROUND Appellant Jordan Darrell Morris was arrested on November 16, 202 0 , outside the Short Pump e mergency r oom, and charged with possession of a Schedule I or II controlled substance ( in violation of Code § 18.2

- 250 ) and driving under the influence of drugs, first offense ( in violation of Code § 18.2

- 266 )

. He was release d fr om jail on a $1,400 recognizance bond.
On June 1 6 , 202 1 , t he Commonwealth gave notice of its intent to use at trial a lab analysis showing that Morris ’s blood tested positive for cocaine and that cocaine residue was found on a smoking device in the car he was driving

. Morris , represented by counsel, moved to suppress the drug evidence and to dismiss the drug

- possession charge under the medical

- amnesty provision of Code § 18.2

- 251.03

. Morris argued that he “ was actively seeking medical care for himself when the Henrico police developed the evidence against him.” The motion recited that

Morris was trying to seek medical attention at Short Pump Emergency Room when he stopped the vehicle in the middle of the r oadway adjacent to the emergency hospital. Henrico police officers Cirillo and Steelman observed that Morris was under the influence of drugs, and Morris told them he had recently smoked crack cocaine. Morris told the officers he was contemplating suicid e because of drugs and made suicidal statements at the hospital.- 3

-

The Commonwealth’s written opposition asserted that Morris “had produced no evidence or testimony from any medical personnel present that evening, nor any other evidence, that he was experi encing an overdose.” On July 15, the trial court conducted a hearing on Morris’s suppression motion and motion to dismiss, at which both sides “agreed to proffer the facts.” Paraphrasing the police report, Morris’s counsel represented that Henrico police officers observed a white Ford Edge trying to turn onto the road adjacent to the Short Pump emergency room. The vehicle nearly struck a curb in the turn lane and stopped in the middle of the road, blocking through

- traffic

. Officers Cirillo and Steelman a pproached the vehicle, driven by Morris, and asked him to park the car . Morris said that “he was there to get help , ” telling the officers that he had smoked crack cocaine. The officers escorted Morris into the emergency room. As medical personnel drew a blood sample, Morris “made suicidal statements.” In response to question s from a third policeman, Officer Foley, Morris said that he worked at Food Lion ; he had asked to sit in his boss’s car to call his mother ; he had call ed his mother “because
he was th inking about committing suicide”; he had driven away from the Food Lion and had driven around awhile before heading to the Short Pump emergency room

. When asked whether his mother had told him to “go to the ER,” Morris said he “chose to do so himself ” because “ he was thinking about suicide. ” When Foley asked, why suicide , Morris responded, “drugs

. ” Morris said that he had used heroin, fentanyl , and cocaine , that he had smoked crack cocaine in his boss’s car , and that he “came to the ER to get help for the suicidal thoughts and his drug problem.” Morris alerted the officers to a crack pipe in the vehicle, which they found tucked in the crevice of the passenger seat.- 4

-

The Commonwealth initially disagreed with certain aspects of the proffer

. P ressed by the trial court, however, the Commonwealth agreed to “the Defense version” to the extent there were any inconsistencies. 1
B oth parties treated the statute as creating an “affirmative defense” to be proven by the defendant. The Commonwealth argued that Morris was required to present expert testimony that he was in fact experiencing an overdose and that it was not enough to simply take his word for it. Morris’s counsel argued that the immunity statute applied because the lab tests showed cocaine in Morris’s blood, Morris drove himself to the emergency room seeking treatment, and he said three t imes that he was suicidal because of his drug use. Ruling from the bench, the trial court denied Morris’s motion s to suppress the drug evidence and to dismiss the drug

- possession charge

. The court saw “no evidence that [Morris] was experiencing a life

- thr eatening condition.” It was “not going so far as to say ” that a medical professional had to be called as a witness to prove an overdos e

— circumstantial evidence could suffice

. But the court found the proffer insufficient. “[J]ust because” the drugs “affected his
behavior [did] not mean we’re in a life

- threatening situation.” The court said there must be

1 Both the Commonwealth and Morris argue on brief that we should view the facts in the “light most favorable” to the Commonwealth, the prevailing party below. But “[w]e do not permit litigants ‘ to define Virginia la w by their concessions. ’” Butcher v. Commonwealth , 298 Va. 392, 395 (2020) (quoting Daily Press, Inc. v. Commonwealth , 285 Va. 447, 454 n.6 (2013) )

. The facts considered by the trial court were based on an oral proffer by defense counsel, to which the p rosecutor agreed. Cf. Massenburg v. City of Petersburg , 298 Va. 212 , 216

- 17 (2019) (explaining that the standard of appellate review of a ruling on a plea in bar depends on whether evidence was heard below). The dissent argues that the light

- most

- favorab le standard applies because the parties stipulated the facts. But that conclusion does not follow from the premise. See Farmer’s Ins. Exchange v

. Enters. Leasing Co. , 281 Va. 612, 617 (2011) (stating that, where the circuit court granted “ summary judgment relying on stipulated facts ,” appellate courts

“ review de novo the circuit court ’ s application of the law to the undisputed facts ”). Because we vacate the drug

- possession conviction and remand this case for further proceedings, and because the fa ctual nuances of the proffer do not control the outcome, we need not decide whether the light

- most

- favorable standard is appropriate.- 5

-

“ some showing ” that Morris’s expression of wanting to kill himself “was caused by the ingestion of cocaine and this overdose situation.”
Morris subs equently pleaded no contest to the charges against him , reserving his right to appeal the immunity ruling on the drug

- possession charge

. The trial court accepted the pleas, finding Morris guilty on both charges

. The court sentenced Morris to five years’ incarceration on the drug

- possession charge , suspending all but two month s . It sentenced him to twelve months ( all suspended ) on the driving

- under

- the

- influence charge

. Morris now appeals the trial court’s decision denying him medical

- amnesty immunity on the drug

- possession charge ( Case No. CR21

- 1545

- 00F )

. 2
S TANDARD OF R EVIEW The proper interpretation of Code § 18.2

- 251.03 is a question of law that we review de

novo . E.g. , Citland, Ltd. v. Commonwealth ex rel. Kilgore , 45 Va

. App. 268, 275 (2005) (“ Pure statutory construction, a matter within the ‘core competency of the judiciary,’ requires de novo review.” ( quoting Finnerty v. Thornton Hall, Inc. , 42 Va. App. 628, 635 (2004)) ) ; Broadous v. Commonwealth , 67 Va

. App. 265 , 268 (2017) (applying de novo review to interpretation of Code § 18.2

- 251.03).
A NALYSIS Beginning with New Mexico in 2007, at least forty States have enacted laws providing protection from criminal liability for persons seeking emergency medical assistance for a drug overdose. See Nicole Schill, The Fatal Shortcomings of Our Good Samaritan Overdose Statutes and Proposed Model Statute , 25 Cardozo J. Equal Rts. & Soc. Just. 123, 126 (2018). We will refer to such statutes as “medical

- amnesty laws, ” but they are also sometimes called “ Good

2 Morris did not appeal his driving

- under

- the

- influence conviction (Case No. CR21

- 1546

- 00M ) , so that conviction is not bef ore us.- 6

-

Samaritan Overdose Laws ” or “ 911 Immunity Laws.” Id. at 126 n.17

. Different States have taken different approaches. Some permit the summoning of medical help to be used by the defendant only “as [a] mitigating cir cu mstance [] ” at sentencing. Id

. at 139

- 40 (describing Ind. Code Ann. § 35

- 38

- 1

- 7.1(b)(12) (West 2017) ) . Some permit the defendant to raise the summoning of assistance as an “affirmative defense , ” establishing a “justification or excuse that
relieves them o f criminal liability.” Id

. at 140

. And some provide “immunity from criminal liability.” Id

. at 141. Virginia’s medical

- amnesty statute was first enacted in 2015. 2015 Va. Acts chs. 418,
436 (codified at Code § 18.2

- 251.03). The original statu t e followed the “affirmative defense” approach

. For enumerated drug

- and alcohol

- possession charges, the law provided, in pertinent part , “ an affirmative defense . . . if [s] uch individual, in good faith, seeks or obtains emergency medical attention for hims elf, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose, by contemporaneously reporting such overdose .” Code § 18.2

- 251.03(B ) (1) ( Supp. 2015 )

. For the affirmative defense to apply, the defend ant was required to remain a t the scene of the overdose ( or any alternative location to which the person requiring emergency medical attention was transferred ) ; identif y himself to the responding law

enforcement officer; and substantially cooperate with law enforcement in any criminal investigation relating to the substance that caused the overdose

. Code § 18.2

- 251.03(B)(2 )

- ( 4) ( Supp. 20 15 )

. The affirmative defense was limited to offenses based on evidence “ obtained as a result of the in dividual seeking or obtaining emergency medical attention. ” Code § 18.2

- 251.03(B)(5) ( Supp. 20 15 )

. W e considered the 2015 version of the statute in Broadous

. 67 Va

. App. at 268

- 73 . We said its “ clear purpose ” was to provide “ a ‘ safe harbor ’ from prosecution to encourage . . . prompt emergency medical treatment to those who have suffered an overdose as a result of- 7

-

ingesting a controlled substance. ” Id

. at 271. We found that t he General Assembly “ obviously made a policy determination that en couraging others, who may themselves be guilty of violating the laws involving controlled substances, to call 911 in an effort to save a life is more important than their prosecution. ” Id

. Nonetheless, we were constrained by the language of the statute , a s it was then written, to conclude that it protected only a person who “seeks or obtains” emergency medical treatment for himself or for another. Id

. at 270

- 72. Broad ous was not protected under that standard because,

a lthough she had suffered a drug overdose, her boyfriend was the person who called for
emergency medical assistance , not Broadous

. Id

. at 273. We observed that other States provided broader protection in their medical

- amnesty statute s , extending amnesty to defendants who were the beneficiaries of emergency

- medical calls made by others

. Id

. at 272 (citing Ohio Code § 2925.11(B)(2)(a)(viii) )

. S uch protection was “ absent from Virginia’s statute ,” we said ,

“ presumably because our legislature made a policy decision not to include it. ” Id

. at 273. After Broadous , t he General Assembly revisited the medical

- amnesty statute three times, each time expanding its protection s . The 2019 amendment eliminate d the requirement that the defendant must have cooperated in any criminal investigation relating to the substance that caused the overdose. 2019 Va. Acts ch. 626 (deleting Code § 18.2

- 251.03(B)( 4))

. The 2020 amendment made two more changes

. 2020 Va. Acts ch. 1016. I t upgraded the nature of the amnesty from an “ affirmative defense ” to an immunity from “ arrest or prosecutio n .” Code § 18.2

- 251.03 (B) (Supp. 2020)

. T he amendment also superseded Broad o us , expanding amnesty to protect defendants in Broadous ’s situation: someone who “ is experiencing an overdose ” when “ another individual, in good faith, seeks or obtains emergency medical attention for such individual .” Code § 18.2

- 251.03 (B)(1) (ii ); s ee McCarthy v. Commonwealth , 73 Va. App. 630 , 646 (2021) (describing the 2020 amendments).- 8

-

Finally , the 2021 amendment broadened the amnesty for good Samaritans who themselves provide medical aid to those experiencing an overdose

. See 2021 Va. Acts, Sp. Sess. I, ch. 29 (codified at Code § 18.2

- 251.03 (B) (1) (iii) ) ( shielding a person who, “i n good faith, renders emergency care or assistance, including cardiopulmonary resuscitation (CPR) or the administration of naloxone or other opioid antagonist for overdose reversal, to an individual experiencing an overdose while another individual seeks or obtains emergency medical attention in accordance with this subdivision ” ). With that statutory framework as the backdrop, we turn to the issues presented here.
A. A subjective standard determines whether the person in need of emergency medical attention i s experiencing an overdose

. The parties agreed at oral argument that the trial court use d an objective standar d in applying Code § 18.2

- 25 1 .03 , requiring that Morris demonstrate that he was, in fact , experiencing drug

- induced suicidal ideation

. The trial court denied Morris’s motion after concluding that Morris failed to carry his burden

. 3

3 Morris and the Commonwealth assume that the defendant bears the burden of persuasion on medical

- amnesty immunity. We have previously observed that “ there is no uniform rule in Virginia regarding the burden of persuasion for affirmative defenses. Instead, the determination of which party has the burden of persuasion turns on which affirmative defense is being asserted. ” Tart v. Commonwealth , 52 Va

. A pp. 272, 276 n.1 (2008) . Courts in other jurisdictions have divided on whether the prosecution or defense bears the burden of persuasion on a medical

- amnesty defense

. Compare People v. Harrison , 465 P.3d 16 , 23 (Colo. 2020 ) (“[T] he prosecution must prove beyond a reasonable doubt that the defendant ’ s conduct was not legally authorized by the affirmative defense. ”), with People v. O’Malley , 183 N.E.3d 928, 935

- 36 (Ill. App. Ct.) (imposing burden of production and persuasion on defendant), appeal denie d , 175 N.E.3d 148 (Ill. 2021); State v. W.S.B. , 180 A.3d 1168, 1183 ( N.J. Super. Ct. App. Div. 2018) (same); State v. Williams , 888 N.W.2d 1 , 6 (Wis. Ct. App. 2016) (same). But neither Morris nor the Commonwealth has briefed that question under Code § 18. 2

- 251.03, nor have they addressed the relevance of Code § 18. 2

- 263 (stating for referenced drug offenses that “ the burden of proof of any . . . exception, excuse, proviso, or exemption shall be upon the defendant ”). The parties’ failure to brief this issu e persuades us that we should not decide it here. See Butcher, 298 Va. at 395; Logan v. Commonwealth , 47 Va

. App. 168, 172 n.4 (2005) (en banc) . We therefore assume without deciding that the defendant bears the burden of proving entitlement to immunity under Code § 18.2

- 251.03.- 9

-

T he trial court erred in its analysis because the medical

- amnesty statute imposes a subjective standard , not an objective one

. We reach t hat concl usion based on the “ plain meaning” of the text and the “ clear purpose of the statute , ” as evidenced by the text. Broadous , 67 Va

. App. at 271. 4 “[W]e start with the text , ” Levick v. MacDougall , 294 Va. 283, 292 (2017) , consider ing the statute’s application to a person , like Morris, who seeks medical assistance for himself

. The
statute provides immunity from arrest or prosecution for drug possession if “[ s ] uch individual (i) in good faith , seeks or obtains emergency medical attention

. . . for hi mself, if he is experiencing an overdose .” Code § 18.2

- 25 1.03(B) (1 ) (emphasis added). Both terms

— “good faith” and “experiencing”

— apply to the person seeking treatment . That person is entitled to immunity if he is seeking medical attention “in good faith” because “he is experiencing” a drug
overdose.

4 The dissent would treat this issue as defaulted, claiming that Morris did not argue for a “subjective” standard on br ief. The dissent would simply hold that an objective standard governs. In truth, however, neither Morris , nor the Commonwealth , nor the trial court used the terms “subjective” or “objective

. ” We view Morris’s arguments , though at times inconsistent, as sufficient to have preserved this issue for review . In the trial court, Morris’s counsel maintained that “if you are thinking about committing suicide because you are having suicidal ideations, then I think you’re in a life

- threatening situation.” He add ed, “I think that’s enough under this statute because they use the term life threatening

. . . . I think that’s the important part because the General Assembly is trying to get people that cause themselves to be in this kind of medical condition to go see k the help.” On brief here, Morris argued that he “believed he was suicidal because of his drug use.” He added that , “By expressing to the police that suicidal thoughts were creeping into his mind because of his drug use [,] . . . he was in a ‘life

- threatening’ condition as defined by Virginia Code § 18.2

- 251.03.” The dissent quotes Morris’s albeit inconsistent statement that “ the query should be: under the totality of circumstances would a reasonably prudent person believe that he was sufferi ng from a life

- threatening situation. ” T he dissent omits the next sentence, that Morris “had every reason to believe that he was experiencing a ‘life

threatening condition.’” W hen oral argument made the nomenclature clear to both parties, Morris suggeste d that it involved both subjective and objective elements. We need not belabor the point. His inconsistency does not force us to declare that an objective standard applies. “ Our fidelity to the uniform application of law precludes us from accepting conc essions of law made on appeal. Because the law applies to all alike, it cannot be subordinated to the private opinions of litigants .” Logan , 47 Va

. App. at 172.- 10

-

T he phrase “ is experiencing” reflects the personal perspective of the accused

— whether

“ he is experiencing an overdose.” Code § 18.2

- 251.03(B) (1)(i)(a) (emphasis added). In its verb form, to experience means to “feel, suffer, undergo.” Experience , Webster’s Third New International Dictionary (2002). “Experience indicates an actual living through something ” or knowing it “ firsthand.” Id. T he perspective , in other words, is from the point of view of the
person doing the “ experiencing

. ” The dissent tries unsuccessfully to show that is experiencing connotes an “objective”
standard. The dissent quotes Webster’s definition of experience in its noun form: a “direct
observation of or participation in events: an encountering, undergoing or living through things in general as they take place in the course of time.” Id

. Unlike the dissent, we see nothing in that definition to show that the defendant must actually be having an overdose to experience one. The dissent overlooks another of Webster’s noun - form definition s that thoroughly undercuts the dissent’s argument ; Webster’s also defines an experience as “something personally encountered, undergone, or lived through .” Id

. (emphasis added).
Th at inherently subjective viewpoint is reinforced by the requirement that the person “experiencing” an overdose seek medical at tention “in good faith.” The phrase “good faith” comports with its usual, subjective meaning, a “ state of mind consisting in

. . . honesty in belief
or purpose .” Good Faith , Black’s Law Dictionary (11th ed. 2019); see also Good Faith , Webster’s , s upra (“[A] state of mind indicating honesty and lawfulness of purpose” or “belief in one’s legal title or right”) . As our Supreme Court said in the context of Virginia’s Uniform Commercial Code, “G ood faith does not encompass a concept of negligence; the test is a subjective one ” and is “ determined by looking to the mind ” of the person in question. Lawton v. Walker , 231 Va. 247, 251 (1986); see also Code § 8.1A

- 201(b)(20) (“‘ Good faith ’ means honesty in fact in the conduct or transaction concerned. ”). The con cept of “good faith” in the- 11

-

medical

- amnesty statute likewise calls for an assessment of the mind of the person seeking medical attention. If the General Assembly had wanted an objective standard, it would have spoken in terms of whether a reasonable person would perceive the symptoms as an overdose; whether the victim was, in fact, having an overdose; or

— better yet

— whether the victim was “overdosing.” By treating the phrase “is experiencing an overdose” as if it read “is overdosing,” the dissent renders
th e term “ experiencing ” mere surplusage, “contrary to the settled rule in this Commonwealth that every provision in or part of a statute shall be given effect if possible.” Va. Elec. & Power Co. v. State Corp. Comm’n , 300 Va. 153, 163 (2021) (quoting Travel ers Prop. Cas. Co. of Am. v. Ely , 276 Va. 339, 345 (2008) ); Blackwell v. Commonwealth , 73 Va. App. 30, 50 (2021) (same)

. The absence of such language in Virginia’s medical

- amnesty statute is conspicuous given that some States have expressly adopted an obje ctive standard

. Wisconsin’s amnesty statute protects an “aider” who helps someone else seek emergency treatment for a n overdose. Wis. Stat. § 961.443

. But it provides protection only if “a reasonable person would believe” the victim to be suffering an overdose. Id. 5 Colorado’s statute includes both a subjective and an objective standard. See People v. Harrison , 465 P.3d 16 , 22

- 23 (Colo. 2020)

. Similar to Virginia’s statute, Colorado’s requires that the o verdose victim ( or good Samaritan ) report “in good faith” the overdose event

— a “subjective standard.” Id

. at 22 (citing Colo. Stat.
18

- 1

- 711 (1)(a)). But unlike Virginia’s statute, and like Wisconsin’s, Colorado’s statute

5 Notably, the Wisconsin legislature adopted that objective standard in 2017, 2017 Wis. Sess. Laws 33, after Wisconsin ’s intermediate court observed in 2016 that the statute, as then drafted, protected “ an individual who aids a person he/she believes is suffering from an adverse reaction to drugs .” Williams , 888 N.W.2d at 5. The court characterized that belief as relating

“ personally to the defendant.” Id

. at 6 (emphasis added)

. See generally Emily O’Brien, A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Op ioid Crisis , 2020 Wis. L. Rev. 1065, 1079 (2020) (“An objective reasonable person standard replaced the aider’s subjective belief that the aided person was overdosing or suffering an adverse reaction.”).- 12

-

specifically define s an “overdose event” as “an acute condition

. . . that a layperson would reasonably believe to be a drug or alcohol overdose that requires medical assistance

. ” Id

. at 21 (quoting Colo. Stat. 18

- 1

- 711 (5)). Colorado’s Supreme Court read that phrase to “ inj ect [] an objective standard into the analysis. ” Id

. at 22. Virginia’s statute, by contrast, lacks that reasonable

- person qualifier. It is “ absent from Virginia’s statute presumably because our legislature made a policy decision not to include it. ” Broad o us , 67 Va

. App. at 273. Virginia is not an outlier in using a subjective standard. Several other States employ a similar subjective standard as well. 6 The dissent seizes on Florida’s statute to show that “experiencing an overdose ” requires an obje ctive standard. Florida’s statute refers to a “ person who experiences, or has a good faith belief that he or she is experiencing , an alcohol

- related or a drug

- related overdose and is in need of medical assistance .” Fla. Stat. Ann. § 893.21 (2) (emphasis a dded)

. True, a dding the italicized phrase to Virginia’s statute would have reinforced that the standard is a subjective one. Had the General Assembly done that , we likely would not be having this debate

. But that begs the question whether “experiencing an overdose ” calls for a subjective or objective inquiry. And we find the dissent’s argument unpersuasive that it is objective. Quite simply, “experiencing an overdose” does not mean “actually having an overdose.”
Even a ssuming for argument’s sake that “experiencing an overdose ” is susceptible of either an objective or subjective construction , two longstanding interpretive principles would

6 E.g. , Ark. Code Ann. § 20

- 13

- 1704 (a)(2) (“T he pers on is experiencing a drug overdose and in good faith seeks medical assistance for himself or herself

. ”); Fla. Stat. Ann. § 893.21 (2) (“ A person who experiences, or has a good faith belief that he or she is experiencing, an alcohol

related or a drug

- related overdose and is in need of medical assistance

. . . .”); Ga. Code Ann. § 16

- 1 3

- 5(b) (“ Any person who in good faith seeks medical assistance for a person experiencing or believed to be experiencing a drug overdose

. . . . ”); N.J. Stat. Ann. § 2C:35

- 30 (a) (“ A person who, in good faith, seeks medical assistance for someone experiencing a drug overdose

. . . .”); Tenn. Code Ann. § 63

- 1

- 156 (b) (“ Any person who is experiencing a drug overdose and who in good faith seeks medical assistance

. . . .”).- 13

-

require that we apply the subjective interpretation that favors defendants. First, the statute is highly remed ial and entitled to a liberal construction. Cf. Smallwood v. Commonwealth , 300 Va.
426 , 435 (2022) (“S tatutes that permit the trial court to impose alternatives to incarceratio n . . . are highly remedial and should be liberally construed to provide trial courts valuable tools for rehabilitation of criminals.” (alteration in original) (quoting Peyton v. Commonwealth , 268 Va. 503 , 508 (2004 )) ) ; Slusser v. Commonwealth , 74 Va. App. 761, 773 (2022) (same). As we said
in Broad o us , the purpose of medical amnest y is to “save a life,” a value that we said was more important than obtaining a conviction for drug possession. 67 Va. App. at 271. And second, the rule of lenity require s that we construe any ambiguity in a statute in the defendant’s favor, “reducing e xposure to criminal liability.” Fitzgerald v. Loudoun Cnty. Sheriff ’ s Office , 289 Va. 499 , 508 (2015)

. See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 296 (2012) (Canon 49, Rule of Lenity: “Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant’s favor.”). The rule of lenity is “ founded on the tenderness of the law for the rights of individuals, and on the plain p rinciple that the power of punishment is vested in the legislative not in the judicial department. ” United States v. Wiltberger , 18 U.S. (5 Wheat.) 76, 95 (1820) (Opinion by Marshall, C.J.), q uoted in Jennings v. Commonwealth , 109 Va. 821, 823 (1909). Pu t simply, “when the government means to punish, its commands must be reasonably clear.” Scalia
& Garner, supra , at 29 9. 7

7 The S upreme Court of Virginia has repeatedly applied this principle to resolve statutory ambiguities in favor of criminal defendants. E.g. , Blake v. Commonwealth , 288 Va. 375, 386 (2014) ; Thompson v. Commonwealth , 277 Va. 280 , 291

- 92 (2009) ; Harris v. Commonwe alth , 274 Va. 409, 415

- 16 (2007) ; Waldrop v. Commonwealth , 255 Va. 210, 214

- 15 (1998) ; Yarborough v. Commonwealth , 247 Va. 215, 218

- 19 (1994) ; Commonwealth v. Am

. Booksellers Ass ’ n, Inc

. , 236 Va. 168, 178

- 79 (1988) ; Harward v. Commonwealth , 229 Va. 363, 366

- 67 (1985) ; Martin v. Commonwealth , 224 Va. 298, 300

- 01 (1982) ; Johnson v. Commonwealth , 211 Va. 815, 819 (1971) ; Berry v. City of Chesapeake , 209 Va. 525, 526

- 27 (1969 ); McKinney v. Commonwealth , 207 Va. 239, 243 (1966) ; Anderson v. Commonwealth , 182 Va. 560, 565

- 66- 14

-

To be sure, the rule of lenity does not apply when it “ would conflict with the implied or expressed intent of [the legislature] , ” Koh l’s Dep’t Stores, Inc. v. Va. Dep’t of Taxation , 295 Va.
177 , 188 n.8 (2018) (quoting Liparota v. United States , 471 U.S. 419, 427 (1985) ) , n or when it would lead to “an unreasonably restrictive interpretation of the statute , ” McGinnis v. Commonwealth , 296 Va. 489 , 504 (2018). But neither of those exceptions applies here

. To the contrary , a pplying an objective standard would frustrate the statute’s “clear
purpose . . . to encourage . . . prompt emergency medical treatment” for overdose vic tims

. Broadous , 67 Va

. App. at 271. The dissent effectively insists that defendants produce expert testimony to prove that they were, in fact, having an overdose. The dissent would require Morris to prove through “medical evidence” that “he actually was suicidal” and that his suicidal state “was caused by his use or consumption of drugs

. ” I nfra at 3 6

. Such a be grudging standard

c ould cause people to hesitate before seeking emergency care . It could make them ask questions like , “ Am I really overdosing? ” “ Would a reasonable person be overdosing if they took what I did? ” “ Do I need a note from my doctor before calling 911? ” The deterrent effect of an objective standard might be worse for the good Samaritan who, while using illegal drugs alo ngside an overdosing victim, would have to decide whether to risk prosecution by call ing for help when the victim is “experiencing an overdose.” See Code § 18.2

- 25 1.03(B)( 1) (ii)

. The good Samaritan might waver , worrying that a mistake about whether the victim is , in fact, overdosing would trigger criminal liability for both of them

. This is not to say, of course, that persons using illegal drugs always behave as rational
actors during an overdose cris is . But it is for the General Assembly, n ot courts , to make such

(1944 ). So have we. E.g. , Foley v. Commonwealth , 63 Va

. App. 186, 197

- 9 9 (2014) ; McMillan v. Commonwealth , 55 Va

. App. 392, 401

- 02 (2009) (en banc); Lawson v. Commonwealth , 38 Va

. App. 93 , 96

- 97 (2002) ; Richardson v. Commonwealth , 25 Va

. App. 491, 496 (1997) (en banc )

.- 15

-

behavioral assumption s . And the premise of Virginia’s medical

- amnesty statute

— as we said in Broadous

— is that removing the threat of drug prosecution s will increase the provision of medical care for overdose sufferers , thereby saving lives . 67 Va

. App. at 271. T he General Assembly made an obvious “ policy determination ” that saving a life is more important tha n prosecuting the drug

- possession charge

. Id

. A subjective standard better advances that purpose than an objec tive one. 8 We are not persuaded by the Commonwealth ’s claim at oral argument that a subjective standard would make it “ very difficult ” if not “impossible” to rebut a defendant’s claim that he subjectively believed he was contemplating suicide or exper iencing an overdose

. T he Commonwealth failed to explain why that would be

. T he statute forecloses the most obvious scenario in which a subjective standard mig ht be susceptible to abus e . I mmunity is not available
if the claim for emergency medical treatment is made “ during the execution of a search warrant or during the conduct of a lawful search or a lawful arrest. ” Code § 18.2

- 251.03 ( C ). So a defendant appr ehended in a drug bust cannot immuniz e his illegal possession of drugs by claiming to be suicidal or insisting that he needs to go the emergency room

. What is more, there are countless instances when criminal liability turns on a party’s subjective belief or good faith , yet courts have not abandoned th e subjective requirement as somehow too hard to prove. First

- degree murder requires the prosecution to prove that the defendant committed a “ willful, deliberate, and premeditated kil ling ,” while at tempted murder requires proof of a “ specific intent to kill the victim

. ” Secret v. Commonwealth , 296 Va. 204, 228 (2018) (quoting Commonwealth v. Herring , 288 Va. 59, 77 (2014) )

. Direct evidence of the defendant’s intent is often not available but is also not required. “ [ I ] ntent may be, and most

8 The dissent mistakenly attributes this policy judgment to judicial activism, without citing Broadous and without acknowledging that Broadous derived the “clear” and “obvious[]” purpose of the medical

- a mnesty statute from the text of the statute itself.- 16

-

often is, proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts.” Id

. (quoting Viney v. Commonwealth , 269 Va. 296, 301 (2005) ) ; s ee, e.g. , Bell v. Commonwealth , 11 Va

. App. 530, 533

- 34 (1991) (finding that circumstantial evidence supported intent

- to

- kill element of attempted capital murder). Similar specif ic

- intent requirements are found in crimes involving intent to defraud , e .g. , Sarka v. Commonwealth , 73 Va

. App. 56, 67 (2021) ; crimes requiring proof of lascivious intent or sexual arousal, e.g . , Holley v. Commonwealth , 38 Va

. App. 158, 165

- 66 (2002) ; and crimes involving an intent to threaten,
e.g. , Summerlin v. Commonwealth , 37 V a . App. 288, 297

- 98 (2002). T he Commonwealth has failed to show that a subjective standard under the medical

- amnesty statute would impose an insurmountable obstacle to prosecutions in drug

- possession cases compared to the myriad other settings in which a subjective standard applies

.

B. Suicidal ideation qualifies as an “overdose” when it is “a life

- threatening condition

. ” At oral argument, the Commonwealth also maintained that an “overdose” under the medical

- amnesty statute does not include a drug

- induced desire to kill oneself. The Commonwealth argues that suicidal ideation is not within the “ordinary understanding” of the term “ overdose. ”
W e need not determine the ordinary meaning of “overdose,” however, because the
General Ass embly specifically defined that term in the stat ute as “ a life

- threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances. ” Code § 18.2

- 251.03 (A). That defined term supersedes its ordinary meaning. Cf. Worsham v. Worsham , 74 Va

. App. 151, 168 (2022) (“[T] he ordinary meaning of such terms does not control when, as in this case, ‘ it is manifest from the [instrument] itself that other definitions are inten ded .” (second alteration in original) (quoting Riverside Healthcare Ass ’ n, Inc. v. Forbes , 281 Va. 522, 530 (2011) ) )

.- 17

-

Drug

- induced suicidal ideation that prompts an emergency

- room visit qualifies as a “life

threatening condition” under Code § 18.2

- 251.03 (A ). A “threat” is “[a]n indication of an approaching menac e ” or a “ thing that might well cause harm .” Threat , Black’ s , supra . If a
person who is thinking about killing himself is concerned enough to seek emergency medical
atte ntion to avoid doing so , such suicidal thoughts pose a threat, menace, or risk of harm to that person’s life

. 9
Because drug

- induced suicid al ideation falls within the statuto ry definition, it does not
matter if the General Assembly specifically contemplated a drug user’s risk of suicide when enacting the medical

- amnesty statute. Statutes “ often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. ” Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 79 (1998)

. E ncouraging a person with drug

- induced suicidal ideation to seek eme rgency medical assistance falls within the “plain language” of the statute and serves its “clear purpose” of helping to “ save a life.” Broadous , 67 Va

. App. at 271.
C ONCLUSION T he circuit court erred in using an objective standard to test Morris’s immunity under
Code § 18.2

- 251.03

. W e vacate Morris’s drug

- possession conviction ( Case No.
CR21

- 1545

- 00F ) and remand this case for the trial court to conduct a new hearing on Morris’s motion to suppress and motion to dismiss that charge , consistent with this opinion

. Vacated and r emanded

.

9 We do not hold that every instance in which a defendant claims to be experiencing suicidal ideation necessarily constitutes a life

- threatening condition. See dissent, infra at note 24

. Rather, the fac t finder should determine based on the evidence whether the defendant who claims medical

- amnesty immunity was seeking emergency medical attention in good faith because of a life

- threatening drug

- or alcohol

- induced desire to kill himself.- 18

-

Russell, J., dissenting. Unlike the political branches who actively formulate policy and seek out the matters in which they are engaged, the judicial function, when properly performed, is a modest one. Courts are charged with answering only those questions necessary to resolve the cases brought to us by the litigants as opposed to questions we wish the litigants ha d raised. Courts are to decide cases on the record before them, with appellate courts limited to the argument and evidence raised in the proceedings below. Furthermore, in determining the meaning of statutes, we are governed by the actual words adopted b y the political branches. Policy questions are the province of the political branches, and thus, we may not “add [] language to or delet [e] language from a statute”
in the guise of interpreting that statute. Appalachian Power Co. v. State Corp. Comm ’ n , 284 Va. 695, 706 (2012) (citing BBF, Inc. v. Alstom Power, Inc. , 274 Va. 326, 331 (2007)). Thus, although i t long has been recognized that “ [i] t is emphatically the province and duty of the judicial department to say what the law is [,] ” Fitzgerald v. Lou doun Cnty. Sheriff ’ s Off. , 289 Va. 499, 505 (2015) (quoting Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) ), proper performance of that duty requires us not to stray outside our proper role. Unfortunately, although no doubt well

- intenti oned, the majority violates the judicial norms listed above. As explained below, I believe the majority’s departures from these norms lead the majority to an incorrect conclusion: that a defendant may invoke the protections of the overdose statute withou t actually experiencing an overdose. Accordingly, for the reasons that follow, I respectfully dissent. I. Proper view of the evidence The manner in which an appellate court is required to view the evidence on appeal is well established. We are required to view the evidence adduced below “ in the light most favorable to the Commonwealth, the prevailing party below.” Beck v. Commonwealth , 66 Va. App. 259, 262- 19

-

(2016) (quoting Smallwood v. Commonwealth , 278 Va. 625, 629 (2009) ). Applying this principle requires us to grant the Commonwealth any reasonable inferences that may be drawn from such a view of the evidence. Id

. This view of the evidence governs even if most or all of the evidence is presented to the trial court by way of stipulation instead of by way of testimony. Accordingly, if a stipulated fact is susceptible to multiple interpretations, we are required to adopt the interpretation “ most favorable to the Commonwealth, the prevailing party below.” Id

. Similarly, the Commonwealth is entitled to any reasonable inferences that flow from that interpretation. Id

. Accordingly, in my dissent, I view the evidence through that lens. The majority suggests that this fundamental rule of appellate review might not apply in thi s case. See supra n ote 1 , at p. 4

. In support of its novel proposition, the majority first cites Massenburg v. City of Petersburg , 298 Va. 212, 216

- 17 (2019), a civil case involving whether litigants are entitled to a jury trial on a plea in bar. It has no relevance here as no one contends that a jury was required to resolve the issue before the trial court

. Next, the majority cites to Farmer’s Ins

. Exchange v. Enter prise Leasing Co. , 281 Va. 612, 617 (2011), a civil case involving a motion for summa ry judgment in a dispute over a rental car contract, for the unremarkable proposition that, in summary judgment proceedings involving undisputed facts, an appellate court “review[s] de novo the circuit court’s application of the law to the undisputed facts .” Setting aside that summary judgment in Virginia is a unique animal that rarely has application outside of the summary judgment context, the case provides no instruction for when, as here, facts are in dispute. The parties below stipulated that Morris stated on the night in question both that he was suicidal and that he believed his suicidal ideation was caused by his drug use. There was no stipulation that he was in fact suicidal or that, assuming he was suicidal, any suicidal ideation- 20

-

actually was caused by his use or consumption of drugs. To the contrary, the Commonwealth has always disputed these assertions of fact, and the trial court specifically found that Morris
f ailed to establish that any suicidal thoughts were caused by his use or consumption of drugs. 10 Because this conclusion is supported by the record, we are bound by it and the inferences that flow from it. The fact that we review legal questions de novo d oes not change that no matter how much the majority wishes it were otherwise.

II. The majority’s reversal is improperly based on an argument that Morris did not make and has rejected

. Before turning to the errors in the majority’s construction of the statute, I note that the majority’s resolution, that the statute adopts a purely subjective standard, would be improper in
this case even if it were correct. 11 In adopting that constructio n, the majority must ignore or misstate portions of the record in this case and sua sponte advances an argument that even Morris rejected. Thus, not only does the majority have to ignore the requirement of a contemporaneous objection in the trial court an d the requirement of assigning error to a judgment of the trial court to reach its desired conclusion, it has to reject the arguments of the parties and decide the matter on an argument that it alone crafted and champions. As noted above, the proper role of an appellate court is to decide the cases brought to it by the litigants based on the arguments and record made by the litigants. The crafting of appellate arguments is a function for lawyers, not courts, and the majority’s doing so here simply is impr oper. 12

10 To the extent t hat th e stipulated evidence does not establish all of the facts necessary for Morris to prevail, the majority, having concluded that Morris b ore the evidentiary burden, is duty

- bound to affirm his conviction. After all, it is axiomatic that, in the absence of necessary evidence, the party with the evidentiary burden loses.

11 As explained in detail below , it is not correct.

12 I recognize that we review questions of statutory interpretation de novo . That standard does not give us license to craft ou r own arguments or address arguments neither raised nor- 21

-

In the proceedings below, neither Morris nor the Commonwealth argued anything other than that Code § 18.2

- 251.03 employs an objective standard. 13 Given that agreement, it is unsurprising that, as the majority notes, “[t]he parties agreed at oral argument [in this Court] that the trial court used an objective standard in applying Code § 18.2

- 251.03.” Morris did not object to the trial court’s application of an objective standard, precluding our reversing the trial court for that reason. Rule 5A:1 8 (providing that “ [n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling”); Farnsworth v. Commonwealth , 43 Va. App. 490, 50 0 (2004) (“ Pursuant to Rule 5A:18, this Court ‘ will not consider an argument on appeal [that] was not presented to the trial court. ’ ” (quoting Ohree v. Commonwealth , 26 Va. App. 299, 308 (1998) ) ) , aff ’ d , 270 Va. 1 (2005)

. Furthermore, likely because he agreed with t he trial court, Morris did not assign error to the trial court’s use of an objective standard, which also precludes us from reversing the trial court for doing so. Delp v. Commonwealth , 72 Va. App. 227, 23 6 n.7 (2020) (holding that “[w]e are ‘ limited to reviewing the assignments of error presented by the litigant ’ ” (quoting Banks v. Commonwealth , 67 Va. App. 273, 289 (2017)) ) ; see also Winston v. Commonwealth , 51 Va. App. 74, 82 n.4 (2007) (holding that beca use an appellant did not include

preserved by the litigants. R ather, it applies to the questions of statutory construction properly raised , preserved , and consistently maintained by the litigants.

13 In addressing the failure of Mo rris to make any explicit argument that the statute adopted a purely subjective standard, the majority asserts that certain arguments by Morris in the t rial court implicitly set out the argument. See supra note 4 , at p. 9

. Even absent context, it is a creative reading of Morris’ position; with context, it conflates Morris’ answer to the question with what the question is . In context, Morris’ statement that “ if you are thinking about committing suicide because you are hav ing suicidal ideations, then I think you’re in a life

- threatening situation” is nothing more than his pointing to the evidence he believes established that an objectively reasonable person would believe he was in a life

- threatening situation when he sought medical care. Any doubt that this was Morris’ meaning is extinguished by a review of the argument he made in this Court that I discuss below.- 22

-

an argument in his questions presented (now assignments of error), the Court would not address it on appeal). Compounding the impropriety of the majority reversing the decision of a trial court on the basis of an objection never made and an alleged error never assigned is the fact that, in his brief on appeal, Morris rejected the construction of the statute championed by the majority. As he had from the outset of the case, Morris maintained on appeal that an objective stan dard governs Code § 18.2

- 251.03, writing on brief that:

Morris submits that when determining whether a person is having a “life

- threatening” condition that the query should be: under the totality of circumstances would a reasonably prudent person believe that he was suffering from a life

- threatening situation

. (Emphasis added). Generations of lawyers and even law students recognize that reference to the actions of the “reasonably prudent person” signals an objective test. Certainly, that has been the c onsistent position of Virginia’s appellate courts. Se e, e.g. , Allison v. Brown , 293 Va. 617, 629 n.5 (2017) (defining “an objective standard” as what “a reasonably prudent person ” would have done); Va

. Elec. & Power Co. v. Dungee , 258 Va. 235, 252 (1999) (recognizing that “ the objective test is normally stated simply in terms of the reasonably prudent person ”); A.H. v. Rockingham Pub.
Co. , 255 Va. 216, 223 (1998) (stating that “ duties are premised upon the objective concept of what a reasonably prudent person in the exercise of reasonable care would have done in similar circumstances ”); Christian v. Commonwealth , 33 Va. App. 704, 712 (2000) (noting that “the objective test for reasonable suspicion . . . ‘is whether the reasonably prudent man in the circumstances would be warranted in the belief’” (quoting Terry v. Ohio , 392 U.S. 1, 27 (1968 ) )); Wechsler v. Commonwealth , 20 Va. App. 162, 1 69

- 70 (1995) (recognizing that the “objective standard” regarding whether a person is seized for purposes of the Fourth Amendment- 23

-

turns on whether a reasonable person would have felt free to leave under the circumstances). It is telling that the majority has failed t o identify a single case in which the reasonably prudent person standard was read as creating a subjective test. 14 Not only does the majority fail to cite a case for this proposition, but the majority itself also rejects the proposition when it is not att empting to create out of whole cloth an argument never advanced by Morris. Specifically, in discussing the laws of other states, the majority recognizes the fundamental principle that “reasonable person” language signals an objective test, writing: “I f t he General Assembly had wanted an objective standard , it would have spoken in terms of whether a reasonable person would perceive the symptoms as an overdose.” Supra , at
p. 11 ( e mphasis added). Although at this point there should be no doubt that the maj ority’s subjective

- standard position is an argument it and not Morris has raised, oral argument in this Court further demonstrates the point. When asked questions at oral argument that suggested the majority wished to adopt a subjective standard, Morris s teadfastly and resolutely continued to maintain what his argument always has been: that the statute imposes an objective standard and that he met it. In what charitably could be described as understatement and less charitably as misleading, the majority characterizes the exchange as “[w]hen oral argument made the nomenclature clear to both parties, Morris suggested that it involved both subjective and objective elements.” The actual words that Morris used are more telling and invalidate the position (and characterization) advanced by the majority.

14 Unable to address Morris’ reasonable person language choice directly, the majority again offers snippets from his brief in which Morris references his subjective belief that he was suicidal as a result of consuming drugs. Once again, this conflates the evidence Morris offers to answer what he recognized was an objective question with the question itself.- 24

-

Specifically, when essentially asked by the majority to agree that the statute utilizes a subjective standard, Morris responded that his “argument is that his subjective view is one of the facts that the [trial ] court should take into account in determining the objective view.” Clearly, as he has maintained from the beginning, Morris’ position is that his subjective beliefs are evidence that the trial court had to consider in answering the objective question of whether he was entitled to the protections of the statute. Simply put, the record makes clear that neither Morris nor anyone else other than the majority has ever taken a different position in this case. Thus, the machinations of the majority to recast the argument to one it wishes had been made are unavailing. What is more, they are improper. To answer a question that we are not asked and that is not properly before the Court is to offer “ an impermissible advisory opinion

. ” Va

. M fr s . Ass ’ n v. Northam , 74 Va. App. 1, 21 (2021) . The judiciary has a “duty ‘not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it

. ’” Va. Dep ’ t of State Police v. Elliott , 48 Va. App. 551, 554 (2006) (quoting Hankins v. Town of Virginia Beach , 182 Va. 642, 644 (1944))

. The rationale for this long

- held principle is readily apparent. Courts convene to decide cases and controversies that are brought before them by litigants; courts do not choose the issues they decide. Thus, even if there are questions of statutory construction that are interesting, we do not answer those questions unless and until they are necessary to resolve the dispute brought to us by the litigants. 15 I now turn to the proper interpretation of Code § 18.2

- 251.03 as framed by

15 Faced with the fact that in both his brief and at oral argument in this Court , Morris not only failed to advance, but rejected, the majority’s subjective standard construction of the statute, the majority, citing our decision in Logan v. Commonwealth , 47 Va. App. 168, 172 (2005) ( en banc ), characterized Morris’ statements on brief and at argument as non - binding concession s of law by a party. In doing so, the majority improperly conflates a concession of law with a failure to preserve an argument or a waiver/a bandonment of an argument that was at one time preserved. Moreover, there is no question that the majority knows that it is improperly conflating the two- 25

-

the record in this case and the actual arguments of the parties, i.e., what Morris was required to show to avail himself of the statute’s protection and whether th e trial court erred in finding he failed to meet his burden.
III. Code § 18.2

- 251.03 As the majority notes, Code § 18.2

- 251.03 shields a person from prosecution for specified drug offenses if certain statutory requirements are satisfied. As pertinent here, the statute provides that Morris was not “ subject to arrest or prosecution for . . . possession of a controlled substance pursuant to § 18.2

- 250 . . . if . . . [he] in good faith, s[ought] or obtain[ed] emergency medical attention . . . for himself, if he is experiencing an overdose [.]” Code § 18.2

- 251.03(B)(1)(i) (emphasis added). In short, to claim the protections of the overdose statute, a person must, in fact, be suffering an overdose. Despite this clear language, the majority conclud es that Morris could be entitled to the protections of the statute even if he was not “ experiencing an overdose [,]” Code § 18.2

- 251.03(B)(1)(i), so long as he subjectively believed that he was or possibly might have been. For the reasons that follow, this position cannot be reconciled with the text of the statute, and therefore, occasions my dissent.

because we drew the distinction on the very page of Logan cited by the majority and, in footnote 3 of its opinion in this case, supra , at p. 8 , the majority cites the very passage from Logan that draws the distinction. In Logan , we expressly recogniz ed that

This principle must be distinguished, however, from an appellant’s concession of law that qualifies either as a waiver for purposes of Rule 5A:18 or as an express withdrawal of an appellate challenge to a trial court judgment. In either scenario, we may a ccept the concession

— not as a basis for deciding the contested issue of law, but as a basis for not deciding it. 47 Va. App. at 172 n.4. The distinction is critical here because the initial issue th is Court must determine is whether the question is prope rly before us , not whether the statement is correct should the matter be properly before us. The fact that the majority chooses to conflate the issues despite being well aware of the distinction speaks volumes.- 26

- A. Definition of “overdose” Although “overdose” is a common term with a known meaning, the General Assembly provided a specific statutory definition of “ove rdose” in Code § 18.2

- 251.03. Virginia courts long have recognized that, when the General Assembly provides a statutory definition, that definition controls over the common or ordinary understanding of the word or phrase. See , e.g. , Frias v. Commonwealth , 34 Va. App. 193, 200 (2000) (citing Life & Cas. Ins. Co. of Tennessee v. Unemployment Comp

. Comm ’ n of Virginia , 178 Va. 46, 57 (1941) ). Accordingly, the statutory definition of “overdose” governs our review. For the purpose of Code § 18.2

- 251.03, the General Assembly defined “overdose” to mean “ a life

- threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances.” Code § 18.2

- 251.03(A). Thus, for the protection afford ed by Code § 18.2

- 251.03 to apply, it had to be established that Morris, when he sought medical attention, “[wa]s experiencing” “a life

- threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of su ch substances.” Code § 18.2

- 251.03. Accordingly, I turn to the meaning of “is experiencing” as used in Code § 18.2

- 251.03. B. Definition of “is experiencing” Unlike with “overdose,” the General Assembly did not provide a statutory definition of “is exp eriencing” in Code § 18.2

- 251.03. Consequently , we apply the plain and ordinary meaning of the words. See Hubbard v. Henrico Ltd. P’ship , 255 Va. 335, 340 (1998) (holding that if “a statute contains no express definition of a term, the general rule of st atutory construction is to infer the legislature’s intent from the plain meaning of the language used” (citing City of Va. Beach v. Flippen , 251 Va. 358, 362 (1996) ; Marsh v. City of Richmond , 234 Va. 4, 11 (1987)) ) ; see also Moyer v. Commonwealth , 33 Va. App. 8, 35 (2000) ( en banc )- 27

-

( holding that “when a particular word in a statute is not defined therein, a court must give it its ordinary meaning” (citing McKeon v. Commonwealth , 211 Va. 24, 27 (1970)) ) . In ascertaining the plain and ordinary meaning of such undefined words and phrase s, it is appropriate for courts to turn to dictionary definitions. Eberhardt v. Commonwealth , 74 Va. App. 23, 32 (2021) (citing Jones v. Commonwealth , 296 Va. 412, 415 (2018) ; Mollenhauer v. Commonwealth , 73 Va. App. 318, 33 5 (2021))

. The plain and ordin ary meaning of the word “is” should be sufficiently familiar as to obviate the need for explanation; however, the majority’s interpretation of the statute suggests otherwise. “Is,” a form of the verb “to be,” conveys a state of current reality, as opposed to past, future, potential, or conditional existence. In its various forms , its meanings include “that which is factual, empirical, [or] actually the case[.]” Webster’s Third New International Dictionary 1197 (1981). Adopting the plain and ordinary mea ning of “is” leads to the conclusion that the General Assembly intended that whatever fact or condition follows “is” actually existed at the time in question (as opposed to in the past or that may have come to be in the future) and was not merely possible, theoretical, or imagined. 16
I now turn to the word following “is” in the statu t e, “experiencing , ” a form of the word

“ experience. ” As used in Code § 18.2

- 251.03, it conveys “a direct observation of or participation in events; an encountering, undergoing , or living through things in general as they take place in the course of time[.]” Webster’s , supra , at 800. Applying this plain and ordinary meaning of “experiencing,” leads to the conclusion that, to be entitled to the protections of Code § 18.2

- 251.03, Morris had to be undergoing or living through an “overdos e, ” that is he had to be

16 It is telling that the majority does not address the fact that the word “ is ” connotes “that which is factual, empirical, [or] actually the case” and not what may appear to be the case. Acknowledging this fact would make clear that the majority’s construc tion of the statute is erroneous, so the majority apparently concludes it is just best to ignore it.- 28

-

facing “ a life

- threa tening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances.” Recognizing that this common understanding of what it means to experience something is fatal to its preferred result, the ma jority digs deeper into the dictionary, citing alternative definitions of “experience” to mean “something personally encountered, undergone, or lived through .” The majority asserts that these alternative definitions “thoroughly undercut[]” the notion that the statute is objective. A moment’s reflection reveals that not only is the majority’s
assertion overwrought, but it simply is also incorrect. Adopting these alternative definitions of experience does not alter the outcome. Whether the statute reads “is experiencing an overdose[,]” “is personally encountering an overdose,” “is undergoing an overdose[,]” or “is living through an overdose[,]” the condition that must be experienced, personally encountered, undergone, or lived through is “an overdose , ” not “an imagined overdose” or a “subjectively held belief that he was experiencing an overdose when he

was not.” 17 Whether Morris or any defendant “ i s experiencing ” “ a life

- threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances” at the time he seeks or obtains medical treatment is a question of objective fact. 18 Either the person is, at that moment, faced with a life

- threatening situation caused by the

17 Throughout its opinion, the majority asserts that the focus of this particular portion of the statute is on the individual seeking its protection. I who leheartedly agree that the focus of Code § 18.2

- 251.03(B)(1)(i) is on the defendant as opposed to the world writ large. The question is whether a defendant establishes that he was “experiencing an overdose[,]” not whether someone else was. Thus, just lik e the majority, my focus is on the individual claiming protection under the statute.

18 Because it presents a question of objective fact as opposed to belief, a court properly applying the statute is not asked to determine either what the defendant subjectively believed or what the hypothetical reasonable man would have believed. Rather, th e question is whether there is, in fact , an overdose as defined in the statute.- 29

-

consumption or use of controlled substances/alcohol or he is not. The words chosen by the General Assembly require that there actually be an overdose. 19 In short, to claim the protection of the overdose statute, a defendant actually must be “experiencing an overdose.”
Code § 18.2

- 251.03(B)(1)(i). To hold otherwise ignores the plain meaning of the pertinent words that appear in the statute

.

IV. The majority’s err oneous adoption of a subjective standard Despite the plain and ordinary meaning of “is experiencing an overdose[,]” the majority maintains that the protections of the overdose statute do not require an actual overdose. The majority concludes that even if , as a matter of objective, medical fact, the evidence establishes that a defendant was not facing (and thus did not experience) “ a life

- threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of

s uch substances” at the time he sought or obtained medical treatment, he can claim the protections of the statute so long as he believes that he may have been or was. In adopting the subjective standard, the majority effectively reads out of the statute th e express requirement that a defendant be “experiencing an overdose[,]” Code § 18.2

- 251.03(B)(1)(i) , and effectively replaces it with “ believes or imagines that he is or may be experiencing an overdose.” This effective rewriting of the statute is outside the proper role of the judiciary because it amounts to legislating from the bench. The Supreme Court recently reiterated that such judicial editing of statutes is impermissible, noting that “ [c] ourts are not permitted to rewrite statutes

.

19 An example of the plain and ordinary meaning of “experiencing” in another medical context makes this clear beyond all doubt. Assume a person is having severe chest pains an d goes to the emergency room because he subjectively believes he is having a heart attack. The work

- up that follows demonstrates no heart attack or cardiac condition whatsoever, but rather, conclusively establishes that the chest pain was caused by indige stion. I do not believe anyone, including the majority, would say that the person “was experiencing a heart attack” when he sought treatment. To the extent that the majority, or anyone else, would use that formulation, they would not be attempting to cle arly communicate information based on the plain and ordinary meaning of “experiencing,” but would do so in pursuit of some other agenda.- 30

-

This is a legislative function. The manifest intention of the legislature, clearly disclosed by its language, must be applied.” Chesapeake Hosp. Auth. v. State Health Comm ’ r , ___ Va. ___, ___ ( May 19, 2022) (quoting Anderson v. Commonwealth , 182 Va. 560, 566 (1944) )

. The majority claims it is doing no such thing and offers a multitude of reasons why its preferred construction, that the statute is satisfied by an imagined overdose, is consistent with the statutory language or, at the very least, the statu te’s purpose as perceived by the majority. Although I address specific infirmities in some of these reasons below, it is important to recognize that the majority’s construction fails for the simplest of reasons: the plain and ordinary meaning of the phra se “is experiencing an overdose” requires that a defendant actually experience an overdose . Because any effort to hold that the overdose statute does not require an overdose negates the plain meaning of the phrase, it is in error no matter how well writte n or presented. 20 A. The “good faith” red herring Although unnecessary to properly interpret the phrase “is experiencing an overdose[,]” the majority offers its definition of “good faith” as it is used in Code § 18.2

- 251.03. Citing both a dictionary and a Supreme Court decision interpreting the U.C.C., the majority concludes that “good faith” conveys a “subjective meaning ” and thus, “calls for an assessment of the mind of the person” whose good faith is in question. Supra , at p p . 10

- 11 . Although this may be a reasonable definition of “good faith,” it is largely beside the point because, given its placement

20 The majority refers to the statute as the “medical

- amnesty statute” while I, on occasion, refer to it as the “overdos e statute.” I do so because the text of the statute requires that there be an overdose. Presumably, the majority avoids such a characterization of the statute because “medical

- amnesty” sounds nicer and the majority’s construction of the statute removes t he requirement of an overdose from the statute.- 31

-

in Code § 18.2

- 251.03, the phrase “good faith” does not modify “is experiencing an overdose[,]”
which is the issue in this case. 21 As noted above, Code § 18.2

- 251.03 provides that an individual is “not subject to prosecution” for certain drug offenses if he can meet certain statutory requirements. Among those requirements is that “[s]uch individual (i) in good faith, seeks or obtain s emergency medical attention (a) for himself, if he is experiencing an overdose[.]” Applying ordinary rules of English usage and grammar, it is clear that “good faith” modifies “seeks or obtains emergency medical attention” but not “is experiencing an ov erdose.” After all, “good faith” appears next to “emergency medical attention,” but is separated from “is experiencing” by many words, multiple punctuation marks, and, importantly, the conditional introductory word “if,” rendering “he is experiencing an o verdose” a separate and distinct clause from that which preceded it. Thus, this portion of the statute sets out two, distinct requirements. First, the individual must seek or obtain medical care in “good faith,” that is the motivation to seek medical car e was to receive medical care as opposed to some other reason, such as avoiding prosecution. Second, he must be “experiencing an overdose,” which, as noted above, is a question of objective fact that does not turn on an individual’s belief. If the Genera l Assembly had intended to engraft a subjective, good faith component onto the overdose requirement, it easily could have done so,
e.g. , “ [s]uch individual (i) in good faith, seeks or obtains emergency medical attention (a) for himself, if he in good faith believes he is experiencing an overdose

. ” Courts must respect the

21 Because “good faith” does not modify “is experiencing an overdose” in Code § 18.2

- 251.03, the majority’s discussion of the meaning of “good faith” represents another instance of the majority addressing an issue not before us in this appeal. The trial court did not find that Morris failed to establish that he sought emergency medical treatment in good faith; rather, it found he failed to establish that he was “experiencing an overdose” as requ ired by the statute. In both the trial court and on appeal, the Commonwealth has not argued an absence of “good faith,” but rather, consistently has argued that Morris was not “experiencing an overdose.”- 32

-

choice of the General Assembly not to do so, and therefore, the majority errs by failing to respect that choice. B. The majority’s selective misuse of the law of other states The majorit y affords significant attention to reviewing the enactment of similar statutes in other states and claiming that those statutes and the courts that have interpreted them demonstrate that the General Assembly adopted a subjective standard when it enacted th e “is experiencing an overdose” language in 2015. For the reasons that follow, the laws of other states compel no such conclusion and, in fact, an evenhanded application of the reasoning employed by the majority would support equally the conclusion that t he laws of other states demonstrate that Virginia rejected a subjective standard. At the outset, it is important to remember that when interpreting a Virginia statute, we seek to discern the Virginia General Assembly’s meaning in enacting a statute , Willi ams v. Commonwealth , 265 Va. 268, 271 (2003), not the meaning or intention of another legislative body when it enacted a different statute

. Thus, although reviewing such out

- of

- state authority may be helpful in limited instances, the interpretation of statutes (or court decisions interpreting those statutes) on the same topic from other states is at most persuasive and never controlling. Furthermore, the persuasive effect of out

- of

- state authority is diminished when the out

- of

- state

s tatutes contain different words, as we are charged with determining the General Assembly’s meaning from the words it adopted not from the word choices made by other legislatures. Because there often will be potentially dispositive differences in the langu age in the statutes of various states, the possibility arises that a court relying on out

- of

- state authority will find persuasive those examples that suggest a preferred result rather than other examples which do not. Unfortunately, the majority opinion d emonstrates such inconsistent selection of
out

- of

- state authority.- 33

-

The majority, citing Wisconsin and Colorado as examples, asserts that states employing an objective standard have included language limiting the protections of the statute if “ a reasonable person would believe ” or situations in which “ a layperson would reasonably believe to be a drug or alcohol overdose[.]” Supra , at pp. 11

- 12 (citations omitted). From this, the majority reasons that the absence of such “reasonable person” language in Code § 18.2

- 251.03 means that the General Assembly rejects the objective approach adopted by Wisconsin and Colorado, and therefore, employs a subjective approach like other states identified by the majority. Id

. at 10. The majority identifies several states, in cluding Florida, as states that have adopted the subjective standard. Id. at 12 , n ote 6 . A review of the language of the Florida statute eviscerates the majority’s argument regarding the absence of “reasonable person” language in the Virginia
statute. F lorida employs the subjective standard not because its statute does not include “reasonable person” language , but because its legislature included express language adopting a subjective standard : the Florida statute insulat es from prosecution a defendant “who experiences, or has a good faith belief that he or she is experiencing , an alcohol

- related or a drug

- related overdose and is in need of medical assistance[.]” Fla. Stat. Ann. § 893.21(2) (emphasis added). Thus, had the majority compared Virginia’s s tatute to Florida’s (as opposed to Wisconsin’s and Colorado’s) and applied its absence

- of

- language test, it necessarily would conclude that Virginia rejects a subjective standard because Virginia did not include the language “has a good faith belief that h e or she is experiencing” an overdose that Florida, an acknowledged subjective

- standard state, includes in its statute. I point this out not to say that the majority should have compared the Virginia statute to the language of the Florida statute as oppos ed to the statutes in Wisconsin and Colorado, but rather, to demonstrate the limited utility of such comparisons to out

- of

- state authority. It should- 34

-

go without saying that Code § 18.2

- 251.03 does not mean one thing if a panel of this Court compares it to a statute from Florida and the opposite if we instead opt to compare it to a statute from Colorado. 22 That the majority’s approach logically leads to that result indicates a problem in the approach, not simply its application. Code § 18.2

- 251.03 has meaning independent of the actions of legislatures in Florida, Colorado, and every other state, and we ar e tasked with determining that independent meaning. C. Canons of construction The majority attempts to buttress its position by referencing various canons of statutory construction. Specifically, it asserts that remedial statutes are to be liberally con strued and that criminal statutes are subject to the rule of lenity. The majority’s resort to these rules of construction is inappropriate in this case. As I have noted from the outset, our task is to determine “ the plain meaning of unambiguous statutory language [.]” Gunn v. Commonwealth , 272 Va. 580, 587 (2006) . Resort to other canons of construction, such as the rule of lenity, is inappropriate in the absence of actual ambiguity. See , e.g . , Holsapple v. Commonwealth , 266 Va. 593, 598 (2003) (“W e do n ot agree that the statutory language is ambiguous. Hence, we construe the language according to its plain meaning without resort to rules of statutory interpretation. ”); De’Armond v. Commonwealth , 51 Va. App. 26, 34 (2007) (“ Only when a ‘ penal statute is unclear ’ do courts apply the rule of lenity and strictly construe the statute in the criminal defendant ’ s favor. ” (quoting Waldrop v. Commonwealth , 255 Va. 210, 214 (1998) )).

22 To the extent that such comparisons are useful, t he statutes of Florida, Wisconsin, and Colorado all include language about a belief, whether objective or subjective, that a person is experiencing an overdose. The Virginia statute does not reference belief, leading to the conclusion that it requires an actual overdose as a matter of objective fact. See supra , n ote 18

.- 35

-

There simply is no legitimate ambiguity in the meaning of the phrase “is experiencing an overdose.” Certainly, the language unambiguously requires “an overdose.” To hold otherwise simply cannot be reconciled with the plain and ordinary meaning of the wor ds chosen by the General Assembly. D. Judicial “editing” The majority asserts that my construction of the statute effectively seeks to edit its language. Specifically, the majority asserts without support that “ [b]y treating the phrase ‘is experiencing an overdose’ as if it read ‘is overdosing,’ the dissent renders the term

‘ experiencing ’ mere surplusage,” supra , at p . 11 . This simply is not accurate. As noted above, my interpretation of the statute considers and gives meaning to all of the words “is e xperiencing an overdose” with the same result obtaining even if experiencing is held to fall within the dictionary definitions the majority suggests would be appropriate, “is personally encountering an overdose[,]” “is undergoing an overdose[,]” or “is liv ing through an overdose[.]” Tellingly, to falsely accuse me of effectively excising “experiencing” from the
statute, the majority does not simply remove “experiencing” from the statutory text, but rather,
engages in additional judicial editing of the text , removing the article “an” and replacing “overdose” with “overdosing.” No such editing is required by my construction, further demonstrating that the majority’s charge is without merit. 23 V. Proper application by the trial court Under both the majority ’s construction and how the parties presented the issue to the trial court, it was Morris’ burden to convince the trial court that his claimed suicidal thoughts represented “a life

- threatening condition resulting from the consumption or use of a controlled

23 That the majority charges me with such judicial editing is, at the very least, ironic given that it is the majority whose construction of the statute edits the statutory text to add th e words “or subjectively believes he is experiencing an overdose even if he is not” to the statute.- 36

-

substance, alcohol, or any combination of such substances.” Code § 18.2

- 251.03(A). With a proper understanding of what the statute requires, the trial court reasonably concluded that the evidence did not establish that Morris was “experiencing an overdo se” when he sought medical

care. One of the bases for the trial court reaching this conclusion was that Morris failed to convince the trial court that his suicidal thoughts, such as they were, actually were caused by his “consumption or use” of a controlled substance. Although the stipul ated evidence established that Morris claimed to be suicidal when he sought medical treatment and that he claimed that he believed it was due to “drug use,” the stipulated evidence left open the question of whether he actually was suicidal and whether any such suicidal state was caused by his use or consumption of drugs. Certainly nothing in the evidence compels the conclusion that Morris’ asserted suicidal thoughts were caused by his use of cocaine that evening. No medical evidence was offered to establi sh such a causal link. In fact, no evidence was offered to suggest that the drug use Morris admitted to engaging in causes suicide or even is associated with it. The only evidence offered on the question of causation was Morris’ statement that he believe d that was the cause. Because a reasonable factfinder reviewing the evidence could remain unconvinced on causation, the trial court did not err in concluding that Morris had failed to establish he was suffering from an- 37

-

overdose on the night in question. 24 Accordingly, we should affirm the judgment of the trial court, and the majority’s conclusion otherwise elicits my respectful dissent.

24 Although the trial court’s causation finding was sufficient to dispose of the case, it also question ed whether Morris’ claims of suicidal thoughts represented a “life

- threatening condition[.]” Code § 18.2

- 251.03(A). Although I agree with the majority that there may be circumstances where suicidal thoughts may represent a sufficient threat to life to qual ify as an “overdose” for the purpose of Code § 18.2

- 251.03(A), I disagree that such thoughts alone meet that standard. For example, there may be situations in which a reasonable factfinder could conclude that mere suicidal thoughts without a plan or avail able means of effectuating those thoughts do not constitute a “life

- threatening condition.” In short, whether suicidal thoughts are sufficiently life

- threatening represents a question of fact for the factfinder and is not a question of law for us to resol ve without reference to the facts and circumstances of specific cases.