                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Russell and Malveaux
PUBLISHED


            Argued at Lexington, Virginia


            MICHAEL SCOTT COFFMAN
                                                                                OPINION BY
            v.     Record No. 1640-15-3                                    JUDGE WILLIAM G. PETTY
                                                                              JANUARY 10, 2017
            COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                                           James R. Swanson, Judge

                           Dirk B. Padgett (Dirk Padgett Law PLLC, on brief), for appellant.

                           Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Michael Scott Coffman was convicted of driving while under the influence in violation of

            Code § 18.2-266. Coffman argues that the trial court erred in admitting into evidence the

            certificate of analysis from a blood sample that was obtained by a nurse who was not designated

            by an order of the circuit court to withdraw blood; he argues that such prior designation is

            required by Code § 18.2-268.5. For the following reason, we disagree and affirm Coffman’s

            conviction.

                                                     I. BACKGROUND

                   On January 11, 2015, during the investigation of a one-car accident in Roanoke County,

            Coffman was arrested for driving while under the influence. The arresting officer took Coffman

            to LewisGale Regional Hospital because he complained of shoulder pain. After the arresting
officer informed Coffman of Virginia’s implied consent law,1 Coffman consented to a blood test.

A registered nurse at the hospital drew a sample of Coffman’s blood.

              At trial, Coffman objected to admission into evidence of the certificate of analysis from

the blood sample, which showed a blood alcohol content of .208%. He argued that the certificate

was not admissible because the registered nurse had not been designated by court order to

withdraw blood for purposes of determining alcohol content and that such prior designation was

required by Code § 18.2-268.5.2 The trial court overruled his objection, admitted the certificate

of analysis into evidence, and convicted Coffman of driving while under the influence in

violation of Code § 18.2-266. Coffman now appeals his conviction, challenging the trial court’s

decision to admit the certificate of analysis into evidence.

                                                               II. STANDARD OF REVIEW

              A trial court’s evidentiary ruling is reviewed “under an abuse of discretion standard.”

Boyce v. Commonwealth, 279 Va. 644, 649, 691 S.E.2d 782, 784 (2010). Furthermore,

                             [a] trial court “by definition abuses its discretion when it makes an
                             error of law . . . . The abuse-of-discretion standard includes review
                             to determine that the discretion was not guided by erroneous legal
                             conclusions.” Porter v. Commonwealth, 276 Va. 203, 260, 661
                             S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S.
                             81, 100 (1996)). To the extent that determinations . . . involve the
                             interpretation of a statute or the common law, such an


                                                            
              1
                  Code § 18.2-268.2 provides, in part,

                             Any person . . . who operates a motor vehicle upon a highway . . .
                             in the Commonwealth shall be deemed . . . to have consented to
                             have samples of his blood . . . taken . . . to determine the alcohol
                             . . . content of his blood, if he is arrested for violation of § 18.2-266
                             . . . or of a similar ordinance within three hours of the alleged
                             offense.
              2
         The Commonwealth stipulated at trial that the registered nurse who withdrew the blood
had not been designated by order of the Circuit Court of Roanoke County under the statute. 
                                                                        - 2 - 
                interpretation is a question of law reviewed de novo on appeal.
                See Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d
                309, 311 (2014); Country Vintner, Inc. v. Louis Latour, Inc., 272
                Va. 402, 410, 634 S.E.2d 745, 750 (2006).

Commonwealth v. Greer, 63 Va. App. 561, 568, 760 S.E.2d 132, 135 (2014).

                                           III. ANALYSIS

        Code § 18.2-268.5 lists those persons authorized to withdraw blood for purposes of

determining the blood alcohol level of a person charged with driving while intoxicated. The

statute provides, in relevant part,

                For purposes of this article, only a physician, registered nurse,
                licensed practical nurse, phlebotomist, graduate laboratory
                technician or a technician or nurse designated by order of a circuit
                court acting upon the recommendation of a licensed physician . . .
                shall withdraw blood for the purposes of determining its alcohol
                . . . content.

Code § 18.2-268.5. Coffman argues that by including the word “nurse” in the list of

individuals required to be designated by court order, the General Assembly intended for

all nurses withdrawing blood to be “designated by order of a circuit court acting upon the

recommendation of a licensed physician.” We disagree.

                When the language of a statute is unambiguous, we are bound by
                the plain meaning of that language. Furthermore, we must give
                effect to the legislature’s intention as expressed by the language
                used unless a literal interpretation of the language would result in a
                manifest absurdity. If a statute is subject to more than one
                interpretation, we must apply the interpretation that will carry out
                the legislative intent behind the statute.

Kozmina v. Commonwealth, 281 Va. 347, 349-50, 706 S.E.2d 860, 862 (2011) (quoting Conyers

v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)).

Furthermore, “[w]e consider the statute’s text and its structure to determine the legislative

objective.” Smith v. Doe, 538 U.S. 84, 92 (2003). In doing so, we often employ “intrinsic” aids

for interpretation.
                                                 - 3 - 
                             “Intrinsic” aids for interpretation relate to the language of a statute
                             itself. Courts have called intrinsic aids “technical rules of statutory
                             construction,” and aids which “arise from the composition and
                             structure of [an] act.” . . . These “intrinsic” aids for construction
                             focus attention on a statute’s text, and properly reflect the primacy
                             of the legislature’s own use of language.

2A Norman J. Singer & Shambie Singer, Sutherland on Statutory Construction § 47.1 (7th rev.

ed. 2014) (first alteration in original) (footnote omitted). One such aid is the rule of the last

antecedent.

                                                       A. THE RULE OF THE LAST ANTECEDENT

              The rule of the last antecedent is the “preferred procedure for clarifying whether

modifying language is intended to modify all preceding antecedents or only the final one.”

Newberry Station Homeowners Ass’n v. Bd. of Supervisors of Fairfax Cty., 285 Va. 604, 615

n.4, 740 S.E.2d 548, 554 n.4 (2013). Under the rule of the last antecedent, “qualifying words or

phrases modify the words or phrases immediately preceding them and not words or phrases more

remote, unless the extension is necessary from the context or the spirit of the entire writing.”

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 144 (2012).

Absent a contrary intent, a qualifying word or phrase should be read as modifying only the last

noun or phrase that immediately precedes it, i.e., the last antecedent.3 Alger v. Commonwealth,

267 Va. 255, 259, 590 S.E.2d 563, 565-66 (2004). “The last 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 apply to the provision or clause immediately preceding it.”


                                                            
              3
                  Antecedent means a “preceding thing.” Antecedent, Black’s Law Dictionary (10th ed.
2014).
              4
        A proviso is a “limitation, condition, or stipulation upon whose compliance a legal or
formal document’s validity or application may depend.” Proviso, Black’s Law Dictionary (10th
ed. 2014).

                                                                      - 4 - 
Id. at 259-60, 590 S.E.2d at 566 (quoting 2A Norman J. Singer, Sutherland on Statutory

Construction § 47.33 (6th rev. ed. 2000)).

              In Alger, the appellant argued that the phrase in Code § 18.2-308.2,5 “except in such

person’s residence or the curtilage thereof,” modified antecedents “(a) firearm or (b) stun

weapon or taser,” thus making it permissible for a convicted felon to possess either a firearm or a

stun weapon on her property. Id. at 258, 590 S.E.2d at 565. In rejecting the appellant’s

argument, the Court applied the rule of the last antecedent and held that the “except clause”

modified only the last antecedent, “stun weapon or taser.” Id. at 260, 590 S.E.2d at 566. The

Court reasoned that “because the General Assembly differentiated between ‘firearms’ and ‘stun

weapons or tasers’” by listing them separately, the General Assembly intended the “except

clause” to apply only to the last antecedent, “stun weapons or tasers.” Id.

              Coffman’s grammatical interpretation of the statute would require us to conclude that the

phrase “designated by order of a circuit court” applies to all of the itemized professionals that

precede the phrase. Coffman’s reading, however, “disregards—indeed, is precisely contrary

to—the grammatical ‘rule of the last antecedent.’” Barnhart v. Thomas, 540 U.S. 20, 26 (2003).

We conclude that here, as in Alger, application of the rule of the last antecedent expresses the

intention of the legislature. Because the General Assembly differentiated between medical

professionals by listing them separately, there is nothing to indicate that the General Assembly

intended the phrase “designated by order of a circuit court acting upon the recommendation of a

licensed physician” to modify anything other than the last antecedent, “technician or nurse.”

Therefore, we reject Coffman’s strained construction of the statute and conclude that the General


                                                            
              5
          The 2001 version of Code § 18.2-308.2, in effect at the time Alger was decided,
provided, in part, “It shall be unlawful for (i) any person who has been convicted of a
felony . . . to . . . possess or transport any (a) firearm or (b) stun weapon or taser . . . except in
such person’s residence or the curtilage thereof . . . .”
                                                     - 5 - 
Assembly did not intend to require that a registered nurse be designated by the circuit court in

order to withdraw blood for purposes of establishing the blood alcohol content of a person

charged with driving while under the influence.6

     B. THIS COURT’S INTERPRETATION OF CODE § 18.2-268.5 AVOIDS SUPERFLUOUS LANGUAGE

              “Of course, as with any canon of statutory interpretation, the rule of the last antecedent

‘is not an absolute and can assuredly be overcome by other indicia of meaning.’” Lockhart v.

United States, 136 S. Ct. 958, 963 (2016) (quoting Barnhart, 540 U.S. at 26). However, this

Court will not “interpret a statute in such a way that it renders [other] statutory language

superfluous.” Commonwealth v. Jefferson, 60 Va. App. 749, 758, 732 S.E.2d 728, 732 (2012).

Rather, “[w]e must . . . assume . . . the legislature chose, with care, the words it used when it

enacted the relevant statute.” Williams v. Commonwealth, 61 Va. App. 1, 7, 733 S.E.2d 124,

126 (2012) (alterations in original) (quoting Coles v. Commonwealth, 44 Va. App. 549, 558, 605

S.E.2d 784, 788 (2004)). “‘Because we assume the legislature carefully chose the words used [in

the statute], it is our duty “to give reasonable effect to every word.”’” Id. (quoting Coles, 44

Va. App. at 558, 605 S.E.2d at 788).



                                                            
              6
          Coffman argues that we must apply the rule of lenity in construing the statute. That
rule, however, has application only to penal statutes. Harward v. Commonwealth, 229 Va. 363,
365, 330 S.E.2d 89, 90 (1985) (“Penal statutes are to be strictly construed against the
Commonwealth and in favor of a citizen’s liberty.”). In order for a statute to be construed as
penal, it must impose some type of punishment or sanction. See 3 Norman J. Singer & J.D.
Shambie Singer, Sutherland on Statutory Construction § 59.1 (7th ed. 2008) (“The word penal
connotes some form of punishment imposed on an individual by the authority of the state.”); see
also Miles v. Commonwealth, 272 Va. 302, 307, 634 S.E.2d 330, 333 (2006) (“Because
proceedings under the [Civil Commitment of Sexually Violent Predators Act] may result in a
defendant’s involuntary confinement, he has a substantial liberty interest at stake. As a result of
this liberty interest, we apply the rule of lenity normally applicable to penal statutes to the Act’s
provisions.” (citations omitted)). The statute at issue here implicates no liberty interest and does
not impose a punishment or sanction; it simply sets out the procedure for the collection of
evidence. As a result, it is not a penal statute and the rule of lenity does not apply.
                                                               - 6 - 
              Coffman’s argument that the word “nurse” in the statute refers to all nurses authorized to

withdraw blood renders superfluous the specific references to “registered nurse” and “licensed

practical nurse” earlier in the statute. It would be unnecessary to mention two specific types of

nurses if all nurses were required to be designated by the court. In contrast, construing the

phrase, “designated by order of a circuit court acting upon the recommendation of a licensed

physician,” to modify only the immediately preceding phrase, “technician or nurse,” gives

individual meaning and effect to every word of the statute.

              Furthermore, Coffman’s reliance on Code § 54.1-3000 is not only misplaced, it also runs

counter to his argument. Code § 54.1-3000 deals with the regulation of the nursing profession.

The statute defines six types of nurses by making distinctions based on qualifications, such as

certification or licensure. Two of the types of nurses defined in Code § 54.1-3000 are registered

nurses and licensed practical nurses. Coffman provides no support for his argument that the

General Assembly intended the word “nurse,” which is not defined in Code § 54.1-3000, to be a

catchall in Code § 18.2-268.5. To the contrary, interpreting the language of Code § 18.2-268.5

to distinguish “registered nurse” and “licensed practical nurse” from “nurse” is consistent with

Code § 54.1-3000. Registered nurses and licensed practical nurses are different from other types

of nurses mentioned in Code § 54.1-3000 because the former are required to be licensed.

              Applying the rule of the last antecedent and giving effect to every word of the statute, we

conclude the General Assembly intended to distinguish “registered nurse” and “licensed practical

nurse” from other types of nurses who must be “designated by order of a circuit court acting

upon the recommendation of a licensed physician.”7


                                                            
              7
         We note that another panel of this Court, in an unpublished opinion, recently came to
the same conclusion. Haley v. Commonwealth, No. 1951-15-3, 2016 Va. App. LEXIS 300
(Va. Ct. App. Nov. 8, 2016). The Attorney General has pointed to Haley in support of his
argument. While Rule 5A:1(f) provides that unpublished opinions may be cited as informative,
                                              - 7 - 
                                                               IV. CONCLUSION

              Because we find that Code § 18.2-268.5 authorizes properly licensed registered nurses,

by virtue of their licensure, to withdraw blood for purposes of establishing the blood alcohol

content of a person suspected of driving while under the influence, we affirm the trial court’s

ruling admitting into evidence the certificate of analysis of Coffman’s blood sample.

                                                                                             Affirmed.




                                                            
“unpublished opinions are merely persuasive authority and not binding precedent.” Baker v.
Commonwealth, 59 Va. App. 146, 153 n.3, 717 S.E.2d 442, 445 n.3 (2011). While we find
Haley informative and persuasive, we reach our conclusion without reliance on its holding.
                                                                    - 8 - 
