Jordan Darrell Morris v. Commonwealth of Virginia

Opinion

VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 6th day of September, 2022. PUBLISHED

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 consideration 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 electronic 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. COURT OF APPEALS OF VIRGINIA

Present: Judges Russell,* Ortiz and Raphael PUBLISHED

Argued at Richmond, Virginia

JORDAN DARRELL MORRIS OPINION BY v. Record No. 1194-21-2 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 language 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 Justice of the Supreme Court of Virginia. embrace the desire to kill oneself, the statute 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-possession 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.

BACKGROUND

Appellant Jordan Darrell Morris was arrested on November 16, 2020, outside the Short

Pump emergency room, 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 released from jail on a $1,400 recognizance bond.

On June 16, 2021, the 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 roadway 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 suicide because of drugs and made suicidal statements at the hospital.

-2- 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

experiencing 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 approached 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 questions 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 called his mother “because

he was thinking 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.

-3- The Commonwealth initially disagreed with certain aspects of the proffer. Pressed by the

trial court, however, the Commonwealth agreed to “the Defense version” to the extent there were

any inconsistencies.1

Both 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 times that he was suicidal because of his drug use.

Ruling from the bench, the trial court denied Morris’s motions to suppress the drug

evidence and to dismiss the drug-possession charge. The court saw “no evidence that [Morris]

was experiencing a life-threatening condition.” It was “not going so far as to say” that a medical

professional had to be called as a witness to prove an overdose—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 law 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 prosecutor 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-favorable 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 factual nuances of the proffer do not control the outcome, we need not decide whether the light-most-favorable standard is appropriate. -4- “some showing” that Morris’s expression of wanting to kill himself “was caused by the ingestion

of cocaine and this overdose situation.”

Morris subsequently 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 months. 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

STANDARD OF REVIEW

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).

ANALYSIS

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 before us. -5- 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 circumstance[]” 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 of 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 statute 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 himself, 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 defendant was

required to remain at the scene of the overdose (or any alternative location to which the person

requiring emergency medical attention was transferred); identify 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. 2015). The affirmative defense was limited to offenses based on evidence “obtained as a

result of the individual seeking or obtaining emergency medical attention.” Code

§ 18.2-251.03(B)(5) (Supp. 2015).

We 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

-6- ingesting a controlled substance.” Id. at 271. We found that the General Assembly “obviously

made a policy determination that encouraging 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, as 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. Broadous was not protected under that standard because,

although 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 statutes, 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)). Such 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, the General Assembly revisited the medical-amnesty statute three times,

each time expanding its protections. The 2019 amendment eliminated 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. It upgraded the

nature of the amnesty from an “affirmative defense” to an immunity from “arrest or

prosecution.” Code § 18.2-251.03(B) (Supp. 2020). The amendment also superseded Broadous,

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); see McCarthy v. Commonwealth,

73 Va. App. 630, 646 (2021) (describing the 2020 amendments).

-7- 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, “in 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 is experiencing an overdose.

The parties agreed at oral argument that the trial court used an objective standard in

applying Code § 18.2-251.03, 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. App. 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 denied, 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 issue 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. -8- The trial court erred in its analysis because the medical-amnesty statute imposes a

subjective standard, not an objective one. We reach that conclusion 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), considering

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 himself, if he is

experiencing an overdose.” Code § 18.2-251.03(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 brief. 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 added, “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 seek 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 suffering from a life-threatening situation.” The dissent omits the next sentence, that Morris “had every reason to believe that he was experiencing a ‘life- threatening condition.’” When oral argument made the nomenclature clear to both parties, Morris suggested 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 concessions 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. -9- The 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. The 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 definitions that thoroughly undercuts the

dissent’s argument; Webster’s also defines an experience as “something personally encountered,

undergone, or lived through.” Id. (emphasis added).

That inherently subjective viewpoint is reinforced by the requirement that the person

“experiencing” an overdose seek medical attention “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, supra (“[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, “Good 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 concept of “good faith” in the

- 10 - 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

the 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 Travelers 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 objective standard. Wisconsin’s amnesty statute

protects an “aider” who helps someone else seek emergency treatment for an 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 overdose 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 Opioid 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.”). - 11 - specifically defines 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 “inject[] 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.”

Broadous, 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 objective 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 added). True, adding 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 assuming 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) (“The person 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. § 16-13-5(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 . . . .”). - 12 - require that we apply the subjective interpretation that favors defendants. First, the statute is

highly remedial and entitled to a liberal construction. Cf. Smallwood v. Commonwealth, 300 Va.

426, 435 (2022) (“Statutes that permit the trial court to impose alternatives to incarceration . . .

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 Broadous, the purpose of medical amnesty 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 requires that we construe any ambiguity in a statute in the

defendant’s favor, “reducing exposure 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 principle 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.), quoted in Jennings v. Commonwealth, 109 Va. 821, 823 (1909). Put

simply, “when the government means to punish, its commands must be reasonably clear.” Scalia

& Garner, supra, at 299.7

7 The Supreme 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. Commonwealth, 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 - 13 - To be sure, the rule of lenity does not apply when it “would conflict with the implied or

expressed intent of [the legislature],” Kohl’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)), nor 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, applying an objective standard would frustrate the statute’s “clear

purpose . . . to encourage . . . prompt emergency medical treatment” for overdose victims.

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.” Infra at 36. Such a begrudging standard

could 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

alongside an overdosing victim, would have to decide whether to risk prosecution by calling for

help when the victim is “experiencing an overdose.” See Code § 18.2-251.03(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 crisis. But it is for the General Assembly, not courts, to make such

(1944). So have we. E.g., Foley v. Commonwealth, 63 Va. App. 186, 197-99 (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). - 14 - behavioral assumptions. And the premise of Virginia’s medical-amnesty statute—as we said in

Broadous—is that removing the threat of drug prosecutions will increase the provision of

medical care for overdose sufferers, thereby saving lives. 67 Va. App. at 271. The General

Assembly made an obvious “policy determination” that saving a life is more important than

prosecuting the drug-possession charge. Id. A subjective standard better advances that purpose

than an objective 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 experiencing an overdose. The

Commonwealth failed to explain why that would be. The statute forecloses the most obvious

scenario in which a subjective standard might be susceptible to abuse. Immunity 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 apprehended in a drug bust cannot immunize 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 the 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 killing,” while attempted 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-amnesty statute from the text of the statute itself. - 15 - 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)); see, 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 specific-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 Va. App. 288, 297-98 (2002). The 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.”

We need not determine the ordinary meaning of “overdose,” however, because the

General Assembly specifically defined that term in the statute 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 intended.” (second alteration in original) (quoting Riverside Healthcare Ass’n,

Inc. v. Forbes, 281 Va. 522, 530 (2011))). - 16 - 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 menace” 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

attention to avoid doing so, such suicidal thoughts pose a threat, menace, or risk of harm to that

person’s life.9

Because drug-induced suicidal ideation falls within the statutory 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). Encouraging a person with drug-induced suicidal ideation

to seek emergency 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.

CONCLUSION

The circuit court erred in using an objective standard to test Morris’s immunity under

Code § 18.2-251.03. We 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 remanded.

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 fact 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. - 17 -

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 had 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 by 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 it 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. Loudoun 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-intentioned, 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 without 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

- 18 - (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

this case. See supra note 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. Enterprise Leasing Co., 281 Va.

612, 617 (2011), a civil case involving a motion for summary 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

- 19 - 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

failed 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 does 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 construction, 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 and 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 improper.12

10 To the extent that the stipulated evidence does not establish all of the facts necessary for Morris to prevail, the majority, having concluded that Morris bore 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 our own arguments or address arguments neither raised nor - 20 - 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:18 (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, 500 (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 the 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, 236 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 because an appellant did not include

preserved by the litigants. Rather, it applies to the questions of statutory construction properly raised, preserved, and consistently maintained by the litigants. 13 In addressing the failure of Morris to make any explicit argument that the statute adopted a purely subjective standard, the majority asserts that certain arguments by Morris in the trial 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 having 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. - 21 - 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 standard

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 consistent

position of Virginia’s appellate courts. See, 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, 169-70 (1995) (recognizing that the

“objective standard” regarding whether a person is seized for purposes of the Fourth Amendment

- 22 - turns on whether a reasonable person would have felt free to leave under the circumstances). It

is telling that the majority has failed to 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 attempting 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: “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.” Supra, at

p. 11 (emphasis added).

Although at this point there should be no doubt that the majority’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 steadfastly 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. - 23 - 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. Mfrs. 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 concessions 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/abandonment 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 - 24 - 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 the 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 concludes 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 recognized 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 accept 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 this Court must determine is whether the question is properly 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. - 25 - A. Definition of “overdose”

Although “overdose” is a common term with a known meaning, the General Assembly

provided a specific statutory definition of “overdose” 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 afforded 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 such

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 experiencing” 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 statutory

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)

- 26 - (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 phrases, 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, 335 (2021)).

The plain and ordinary 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 meaning 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 statute, “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 “overdose,” 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 construction of the statute is erroneous, so the majority apparently concludes it is just best to ignore it. - 27 - facing “a life-threatening 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 majority 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 “is 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 wholeheartedly 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 like 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, the question is whether there is, in fact, an overdose as defined in the statute. - 28 - 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 erroneous 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

such 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 the 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 and 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 indigestion. 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 clearly communicate information based on the plain and ordinary meaning of “experiencing,” but would do so in pursuit of some other agenda. - 29 - 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 statute’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 phrase “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 written 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 pp. 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 “overdose 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 the requirement of an overdose from the statute. - 30 - 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 obtains 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 overdose.” 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 overdose” 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 care 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 General 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 required 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.” - 31 - 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 majority 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 the “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 the 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, Williams 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

statutes 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 language 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 demonstrates such inconsistent selection of

out-of-state authority.

- 32 - 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, including Florida, as states that have adopted the

subjective standard. Id. at 12, note 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. Florida 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 insulates 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 statute 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 he 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 opposed to the statutes in Wisconsin and Colorado, but

rather, to demonstrate the limited utility of such comparisons to out-of-state authority. It should

- 33 - 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 are 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 construed 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) (“We do not

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, the 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, note 18. - 34 - 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 words 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 experiencing 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 living 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 the words “or subjectively believes he is experiencing an overdose even if he is not” to the statute. - 35 - 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 overdose” 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 stipulated 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

establish 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 believed 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

- 36 - 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 questioned 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 qualify 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 available 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 resolve without reference to the facts and circumstances of specific cases. - 37 -