COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
RON ROBERTS, S/K/A RONALD ROY ROBERTS
OPINION BY
v. Record No. 1940-97-1 JUDGE DONALD W. LEMONS
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Catherine L. MacLean, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Ron Roberts, s/k/a Ronald Roy Roberts, appeals his
conviction of driving after having been adjudicated an habitual
offender. Roberts asserts that the trial court erred in finding
that he operated a motor vehicle on a "highway" as defined by
Code § 46.2-100. We agree and reverse.
FACTUAL BACKGROUND
On October 3, 1995, at approximately 10:45 p.m., Officer
Christopher E. Fox of the City of Virginia Beach Police
Department first encountered Roberts. At the time of the first
encounter, Officer Fox testified that Roberts was a passenger in
a white van that had been stopped because the driver was
suspected of operating a motor vehicle under the influence of
alcohol. Officer Fox testified that Roberts was uncooperative
and appeared unsteady on his feet. The officer warned Roberts
and another passenger that they would be arrested for being drunk
in public unless they went inside, and the two walked into a
house across the street.
Later that evening, at approximately 11:30 p.m., Officer Fox
observed Roberts driving a white van through the parking lot of a
7-Eleven convenience store. When the officer stopped the van,
Roberts was alone in the vehicle. After the officer arrested him
for being drunk in public, he discovered that Roberts had been
adjudicated an habitual offender and that his license to operate
a motor vehicle had been suspended.
Officer Fox testified that he did not see any traffic signs
within the parking lot. The officer also stated that he did not
notice any signs that indicated that access to the area was
restricted in any way. The officer testified that the store
parking lot was accessible to the public by five entrances.
Delvine Ray Claridge, store manager of the 7-Eleven,
testified on behalf of Roberts and stated that Southland
Corporation of Dallas, Texas owned the store and contracted for
the maintenance of the premises, including the parking lot. She
testified that neither the Commonwealth of Virginia nor the City
of Virginia Beach contributed any funds to the maintenance of the
property. Ms. Claridge stated that she was authorized to ask
persons to leave the 7-Eleven property, including the parking
lot. Ms. Claridge testified further that in the past she had
called the police to remove persons from the store premises and
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that such persons were sometimes charged with trespassing. She
stated that no traffic signs existed on the property, other than
a handicapped sign for one parking space.
DEFINITION OF "HIGHWAY" UNDER VIRGINIA CODE
In order to sustain a conviction for driving after having
been adjudicated an habitual offender, the Commonwealth must
prove that a person has driven a motor vehicle "on the highways
of the Commonwealth," after he or she has been adjudicated an
habitual offender and during the period his or her license is
revoked or suspended. Code § 46.2-357. "[T]he test for
determining whether a way is a 'highway' depends upon the degree
to which the way is open to public use for vehicular traffic."
Furman v. Call, 234 Va. 437, 439, 362 S.E.2d 709, 710 (1987)
(citing Kay Management v. Creason, 220 Va. 820, 831-32, 263
S.E.2d 394, 401 (1980)).
In Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4
(1957), the defendant was convicted of driving a motor vehicle at
a time when his license to operate a motor vehicle had been
suspended. At the time of his arrest, the defendant was driving
his vehicle in the parking lot of a service station. The Court
found that unlike public roadways,
[t]he [gas station] premises . . . were
open to the public upon [the owner's]
invitation. The invitation was for private
business purposes and for his benefit. He
had the absolute right at any time to
terminate or limit this invitation. He could
close his doors and bar the public or any
person from vehicular travel on all or any
part of his premises at will. He had
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complete control of their use.
Id. at 407-08, 100 S.E.2d at 8-9. The Court held that because
public access was so restricted, the parking lot of the gas
station did not constitute a highway for purposes of the Motor
Vehicle Code. Id. at 408, 100 S.E.2d at 9.
In Kay Management, 220 Va. at 831-32, 263 S.E.2d at 401-02,
the Court considered whether motor vehicle laws applied to roads
in an apartment complex for purposes of recovery in a personal
injury action. In distinguishing the facts from those in
Prillaman, the Court held that "the evidence of accessibility to
the public for free and unrestricted use gave rise to a prima
facie presumption that the streets of [the apartment complex]
were highways within the definition of [the Virginia Code]." Id.
at 832, 263 S.E.2d at 401. The Court found that the defendant
was unable to rebut this presumption by merely showing that the
tenants had primary access to the property. See id. at 832, 263
S.E.2d at 402. The Court found that the streets were neither
used exclusively by the owners nor limited to those to whom the
owner had granted permission. See id. at 832, 263 S.E.2d at 401.
In Furman, 234 Va. 437, 362 S.E.2d 709, the plaintiff
suffered injuries in the parking lot of an office complex when
her vehicle collided with the defendant's vehicle as both cars
left the lot. Because the statutory rules of the road apply only
to roadways that constitute "highways," the nature of the parking
area was critical to the outcome of the case. In Furman, the
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roads surrounding the parking area "have always been open to the
public 24 hours a day, seven days a week. Access to the public
has never been denied by guards, gates, or any other device."
Id. at 440-41, 362 S.E.2d at 711. The Furman Court found that
even though the lot was posted with signs stating "Private
Property" and "No Soliciting," the lot was a highway within the
statutory definition because public access was "full and
unrestricted." Id. at 441, 362 S.E.2d at 711.
In Flinchum v. Commonwealth, 24 Va. App. 734, 485 S.E.2d 630
(1997), we reversed a defendant's conviction for operating a
motor vehicle after having been adjudicated an habitual offender.
In Flinchum, the arresting officer observed the defendant "doing
doughnuts" in the parking lot of a sporting goods store. The
officer then watched the defendant drive his vehicle from the
sporting goods parking lot into the adjacent parking lot of a car
repair business. The officer never saw the defendant drive his
vehicle onto Route 11, which ran in front of the two stores. See
id. at 735, 485 S.E.2d at 630.
The sporting goods store was privately owned, and public
access was limited to the issuance of an invitation to do
business by the owner. Id. at 737, 485 S.E.2d at 631. No signs
were posted in the parking lot of the sporting goods store,
although a "No Trespassing" sign was located on the property of
the repair shop. Id. at 735, 485 S.E.2d at 630. The Court
considered the definition of a "highway" contained in Code
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§ 46.2-100:
The entire width between the boundary lines
of every way or place open to the use of the
public for purposes of vehicular travel in
the Commonwealth, including the streets and
alleys, and for law enforcement purposes, the
entire width between the boundary lines of
all private roads or private streets which
have been designated "highways" by an
ordinance adopted by the governing body of
the county, city, or town in which such
private roads or streets are located.
Id. at 735-36, 485 S.E.2d at 630-31 (emphasis added). Based upon
the public's restricted access to the parking lot, we found that
the defendant had not been operating his vehicle on a "highway,"
as defined by Code § 46.2-100.
In the matter before us, Officer Fox arrested Roberts after
observing him driving a white van in the parking lot of a
convenience store. Although the officer had seen Roberts earlier
at a DUI traffic stop as the passenger in the same vehicle, he
did not see Roberts operate the vehicle in any area other than
within the 7-Eleven parking lot.
The 7-Eleven parking lot was privately owned property. The
owner of the lot, Southland Corporation, issued an invitation to
do business to the public. Access by the public to the property
was restricted to this invitation. The owner and its employees
retained the right to ask persons to leave the property and to
have trespassers removed by the police. No traffic signs existed
on the parking lot. Based upon the restricted public access to
the premises, the parking lot of the 7-Eleven store was not a
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"highway" as defined by Code § 46.2-100.
To sustain a conviction of driving after having been
adjudged an habitual offender, a person must have operated a
motor vehicle "on the highways of the Commonwealth," during a
period of time in which he or she has been adjudicated an
habitual offender and while his or her license is revoked or
suspended. Code § 46.2-357. The trial court erred in finding
that Roberts was operating a motor vehicle on a "highway" as
defined by Code § 46.2-100. The conviction is reversed.
Reversed and dismissed.
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