Haley v. Commonwealth

ROY EDWARD HALEY v. COMMONWEALTH OF VIRGINIA

Record No. 1951-15-3

COURT OF APPEALS OF VIRGINIA

NOVEMBER 8, 2016

UNPUBLISHED

Present: Chief Judge Huff, Judges Humphreys and Alston

Argued at Lexington, Virginia

MEMORANDUM OPINION^* BY CHIEF JUDGE GLEN A. HUFF

FROM THE CIRCUIT COURT OF ROANOKE COUNTY

William D. Broadhurst, Judge

Nanda E. Davis (The Davis Law Practice, on brief), for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Roy Edward Haley ("appellant") appeals his conviction of operating a motor vehicle while intoxicated, in violation of Code § 18.2-266.¹ Following a conditional guilty plea in the Circuit Court of Roanoke County ("trial court"), appellant was sentenced to ninety days in jail, all suspended. On appeal, appellant contends that the trial court erred

by ruling that registered nurses need not be designated by circuit court order because the plain reading of the statute requires all professionals to be designated, drawing blood for DUI prosecutions requires specialized knowledge, the only professionals designated by the Roanoke County order at that time were registered nurses, and failing to abide by the statute is a matter of substance not procedure.

For the following reasons, this Court affirms appellant's conviction.

I. BACKGROUND

On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

On December 4, 2014, Officer Gary Haston ("Haston"), a Roanoke County police officer, stopped appellant for driving erratically. After having appellant perform field sobriety tests, Haston placed appellant under arrest and transported him to a hospital where his blood was drawn by Alanna McWilliams ("McWilliams"), a registered nurse. The results of the blood analysis indicated that appellant's blood contained 0.11 milligrams per liter of methamphetamine. As a result, appellant was charged with driving while intoxicated.

Prior to trial, appellant moved to suppress the results arguing that their admission into evidence was a violation of Code § 18.2-268.5 because McWilliams, although a registered nurse, "was not designated by order of the [trial court]." In support of his argument, appellant offered into evidence a trial court order entered August 16, 2000 listing those designated to withdraw blood pursuant to Code § 18.2-268.5, in which all the persons listed had an "RN" after their name to indicate their status as registered nurses. McWilliams's name was not included in the order. Appellant further contended that under Snider v. Commonwealth, 26 Va. App. 729, 496 S.E.2d 665 (1998), the prosecution's failure to use a nurse designated by the trial court was a substantive rather than procedural failure and, thus, was not curable by substantial compliance.

The trial court denied appellant's motion and ruled that the evidence was admissible. The trial court concluded that either McWilliams was authorized under a "rational interpretation of the statute," or if she was not authorized, the designation requirement was procedural and "thedraw substantially complied" with the statute. Construing the statute's plain language, the trial court reasoned:

Physicians, RN's, LPN's and graduate laboratory technicians are publicly designated as qualified by their training and licensure to safely draw blood "according to recognized medical procedures" [(quoting Code § 18.2-268.5)]. However, ready access to these professionals may be limited in rural localities without a local hospital. By creating an additional group of technicians and nurses who could draw blood, the General Assembly provides a larger pool of persons statewide who could safely draw blood to be used as evidence in these criminal investigations. Likewise, by allowing certain nurses and technicians whose training had not risen to the level of licensure or diploma, but who in a physician's medical judgment could safely draw blood, the General Assembly could assure both safety and availability in areas not immediately served by medical facilities.

Consequently, the trial court accepted appellant's conditional guilty plea and convicted appellant of the offense of operating a motor vehicle while intoxicated, in violation of Code § 18.2-266. This appeal followed.

II. STANDARD OF REVIEW

"We review decisions involving the admission of evidence for abuse of discretion by the trial court." Jones v. Commonwealth, 50 Va. App. 437, 445-46, 650 S.E.2d 859, 863 (2007). "'[A] trial court "by definition abuses its discretion when it makes an error of law."' 'In determining whether the trial court made an error of law, "we review the trial court's statutory interpretations and legal conclusions de novo."'" Auer v. Commonwealth, 46 Va. App 637, 643, 621 S.E.2d 140, 143 (2005) (first quoting Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998), then quoting Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001)).

III. ANALYSIS

Appellant argues that the trial court abused its discretion when it admitted the results of the blood analysis derived from the blood sample taken by McWilliams because under the plain meaning of Code § 18.2-268.5, McWilliams was required to be designated by an order of the trial court. Additionally, appellant urges that this Court should construe Code § 18.2-268.5 in appellant's favor if it finds that the statute is ambiguous. Finally, appellant argues that the failure to have McWilliams designated by court order "is a matter of substance, not procedure," which cannot be cured by substantial compliance under Code § 18.2-268.11.²

A. Plain meaning

It is an "elementary rule of statutory construction that every provision in or part of a statute shall be given effect if possible." Tilton v. Commonwealth, 196 Va. 774, 784, 85 S.E.2d 368, 374 (1955).

When the language of a 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. Additionally, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.

Hines v. Commonwealth, 59 Va. App. 567, 574, 721 S.E.2d 792, 795 (2012) (quoting Kozmina v. Commonwealth, 281 Va. 347, 349-50, 706 S.E.2d 860, 862 (2011)).

Code § 18.2-268.5 is located within Article 2 (§§ 18.2-266 to -273, Prosecution of the offense of driving a motor vehicle while intoxicated ("DUI")) of Chapter 7 of Title 18.2. In pertinent part, Code § 18.2-268.5 states:

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 or drug . . . content.

(Emphasis added).

Appellant contends that because "designated by order of a circuit court" appears at the end of a list of individuals, "[t]he plain, obvious, and rational interpretation of this sentence structure is that the phrase at the end qualifies the entire list, not just a small part of the list." Notwithstanding, for the reasons explained below, this Court finds that the plain meaning of Code § 18.2-268.5 supports the trial court's decision.

1. Avoiding a superfluous reading

"This Court will 'interpret statutory language, whenever possible, to avoid rendering other statutory language superfluous.'" Wilson v. Commonwealth, 66 Va. App. 9, 15, 781 S.E.2d 754, 757 (2016) (quoting Epps v. Commonwealth, 59 Va. App. 71, 80, 717 S.E.2d 151, 155 (2011)). This Court "'presume[s] that the legislature chose, with care, the words it use[d]' when it enacts a statute." Id. at 15, 781 S.E.2d at 155 (alterations in original) (quoting Rives v. Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248, 250 (2012)).

This Court holds that under Code § 18.2-268.5, only nurses and technicians who are not "registered nurses," "licensed practical nurses," "phlebotomists," or "graduate laboratory technicians" must be designated by an order of the circuit court to withdraw blood for use in the prosecution of a DUI offense. To adopt appellant's suggested interpretation would require thisCourt to render "registered nurse," "licensed practical nurse," "phlebotomist," and "graduate laboratory technician" as superfluous language because every "technician or nurse" would have to be designated by a circuit court's order. Conversely, by reading "designated by order of a circuit court" to modify only the immediately preceding clause "a technician or nurse," the language in question is not rendered superfluous or meaningless.

Notwithstanding, appellant argues that if the General Assembly intended to only modify "technician or nurse," it should have inserted a comma after the listed term "graduate laboratory technician" or set that last phrase in a separate sentence. But "statutes are not to be construed by strict and critical adherence to technical grammatical rules, and . . . the true meaning, if clearly ascertained, must prevail, though contrary to the apparent grammatical construction." Washington v. Commonwealth, 273 Va. 619, 627, 643 S.E.2d 485, 489 (2007) (omission in original) (quoting Harris v. Commonwealth, 142 Va. 620, 624, 128 S.E. 578, 579 (1925)). "[P]unctuation is not resorted to in the interpretation of statutes, unless the intention of the legislature cannot...