January 10, 2017
MICHAEL SCOTT COFFMAN
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF ROANOKE COUNTY James R. Swanson, Judge
B. Padgett (Dirk Padgett Law PLLC, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Petty, Russell and Malveaux Argued at
WILLIAM G. PETTY, JUDGE
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
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,  Coffman consented
to a blood test. A registered nurse at the hospital drew a
sample of Coffman's blood.
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. 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.
Standard of Review
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
[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
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,
Commonwealth v. Greer, 63 Va.App. 561, 568, 760
S.E.2d 132, 135 (2014).
§ 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.
"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
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.
Rule of the Last Antecedent
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. 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 usually is construed to apply to the
provision or clause immediately preceding it."
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)).
Alger, the appellant argued that the phrase in Code
§ 18.2-308.2,  "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
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
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
Court's Interpretation of Code § 18.2-268.5 Avoids
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).
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
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
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
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
 Code § 18.2-268.2 provides, in
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
 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.
 Antecedent means a "preceding
thing." Antecedent, Black's Law
Dictionary (10th ed. 2014).
 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).
 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 . . . ."
 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.
 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, "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.