COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
STEPHEN WAYNE MITCHELL
OPINION BY
v. Record No. 1033-96-3 JUDGE JAMES W. BENTON, JR.
NOVEMBER 10, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
William L. Heartwell, III (Stephen R. Wills;
William L. Heartwell, III, P.C., on briefs),
for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Stephen Wayne Mitchell was convicted of driving a motor
vehicle while under the influence of alcohol, his third offense
committed within ten years of an offense. See Code §§ 18.2-266
and 18.2-270. On appeal, he contends that the certificate of
analysis was inadmissible and that the conviction was unlawful
because he was operating his motor vehicle on private property.
We affirm the conviction.
I.
The evidence at trial proved that a deputy sheriff drove his
vehicle on a road through a privately-owned mobile home complex
to investigate a report of a crime. The deputy sheriff testified
that, although the roads in the mobile home complex were private,
the roads were open to use by the public for vehicular travel.
He also testified that no signs were posted denoting "no
trespassing" or "private driveway" and that persons who drove
through the mobile home complex were not arrested for
trespassing.
When the deputy sheriff approached the rear of the complex,
he observed a slow-moving truck on the road. The deputy sheriff
signalled the driver of the truck to stop and asked the driver
for his driver's license. The deputy sheriff noticed that the
driver, Stephen Wayne Mitchell, had an odor of alcohol about him.
In response to the deputy sheriff's inquiries, Mitchell said he
had consumed two beers while he was fishing. After Mitchell made
that admission, the deputy sheriff asked him to perform field
sobriety tests. The deputy sheriff then arrested Mitchell for
driving under the influence of alcohol, advised Mitchell of the
implied consent law, and took Mitchell to perform a breathalyzer
test.
The trial judge overruled Mitchell's objection to the
admissibility of the certificate of analysis reporting the result
of Mitchell's breathalyzer test. The certificate indicated that
Mitchell's blood alcohol content was .14 by weight by volume.
At the conclusion of all the evidence, Mitchell moved to
strike the evidence and argued that the evidence failed to prove
he was driving on a public highway. Mitchell also argued that he
was not operating the vehicle, as specified by Code § 18.2-266,
because he was not driving the vehicle on a highway. The trial
judge denied Mitchell's motion. The jury convicted Mitchell of
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driving under the influence of alcohol, third offense.
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II.
As pertinent to this appeal, the implied consent law applies
to "[a]ny person . . . who operates a motor vehicle upon a
highway, as defined in [Code] § 46.2-100, . . . , if [that
person] is arrested for a violation of [Code] § 18.2-266." Code
§ 18.2-268.2(A). If arrested for such a violation, that person
is statutorily "deemed . . . , as a condition of such operation,
to have consented to have samples of [that person's] . . . breath
taken for a chemical test to determine the . . . alcohol and drug
content of [that person's] blood." Code § 18.2-268.2. Mitchell
contends that the certificate of analysis was inadmissible
because he was driving on a private road, which was not a highway
as defined by Code § 46.2-100. We disagree.
Prior to 1993, the implied consent law required proof that
the arrested person operated a motor vehicle on a "public"
highway. See Code § 18.2-268.2 (1992) (amended 1993); former
Code § 18.2-268(B) (1991) (repealed 1992); Thurston v. City of
Lynchburg, 15 Va. App. 475, 478-79, 424 S.E.2d 701, 703 (1992).
However, by Acts of Assembly 1993, Chapter 746, the General
Assembly amended and reenacted Code § 18.2-268.2 by deleting the
word "public" and inserting the phrase "as defined in § 46.2-100"
after the word "highway." 3 When the General Assembly amended the
3
In pertinent part, the Act reads as follows:
§ 18.2-268.2. Implied consent to post-arrest
chemical test to determine drug or alcohol
content of blood. -- A. Any person, whether
licensed by Virginia or not, who operates a
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statute, the Supreme Court of Virginia had consistently ruled
that the word "highway," as statutorily defined in Code
§ 46.2-100, was not limited to public roads. See Furman v. Call,
234 Va. 437, 439-40, 362 S.E.2d 709, 711 (1987). See also Morris
v. Dame's Ex'r., 161 Va. 545, 555, 171 S.E. 662, 665 (1933).
By statute, "highway" is defined as follows:
[T]he 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 specifically 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.
Code § 46.2-100. 4 In unambiguous language, the Court has ruled
motor vehicle upon a public highway, as
defined in § 46.2-100, in this Commonwealth
shall be deemed thereby, as a condition of
such operation, to have consented to have
samples of his blood, breath, or both blood
and breath taken for a chemical test to
determine the alcohol, drug, or both alcohol
and drug content of his blood, if he is
arrested for violation of § 18.2-266 or of a
similar ordinance within two hours of the
alleged offense.
1993 Va. Acts ch. 746.
4
This same statute defines "private road or driveway" as
follows:
[E]very way in private ownership and used for
vehicular travel by the owner and those
having express or implied permission from the
owner, but not by other persons.
Code § 46.2-100.
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that the definition of "highway" includes "ways on private
property that are open to public use for vehicular travel." Kay
Management v. Creason, 220 Va. 820, 832, 263 S.E.2d 394, 401
(1980) (emphasis added).
In Furman, the Supreme Court reviewed its earlier cases and
ruled that the statutory definition of highway encompassed the
roads and parking area surrounding a privately-owned condominium
office complex. The Court held that "the 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." 234 Va. at
439, 362 S.E.2d at 710. The Supreme Court then noted that the
evidence proved "the roads around and in the condominium complex
have always been open to the public 24 hours a day, seven days a
week." Id. at 440-41, 362 S.E.2d at 711. The Court also noted
that the property owners had never denied the public access to
the property "by guards, gates, or any other device." Id.
Although the issues in Furman were decided in the context of
a civil negligence action, the Supreme Court was required to
consider the statutory definition of highway "[b]ecause the
statutory rules of the road only apply to highways." Id. at
439, 362 S.E.2d at 710. When the Furman decision was rendered,
the wording of Code § 46.2-100 was identical to the wording of
the current statute. Thus, we believe the Furman test for
determining whether a road is a "highway" is controlling in this
case.
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Mitchell correctly notes that the statutory definition of
"highway" contains two prongs. See Code § 46.2-100. Contrary to
Mitchell's argument, however, we find no basis to conclude that
the second prong is more restrictive than the Furman test. By
using the word "and" to connect the two prongs of the
definitions, the legislature clearly expanded the definition of
"highway" to provide law enforcement agencies additional
authority to act in those instances where roads that otherwise
would be deemed private roads have been designated "highways" by
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a local ordinance. Thus, in those instances where guards,
gates, barriers, or other devices could be erected to effectively
bar general public access, see Furman, 234 Va. at 440, 362 S.E.2d
at 711, the General Assembly has provided that even those private
roads shall be deemed "highways" for law enforcement purposes
whenever the locality has acted to designate those private roads
as "highways" by ordinance.
5
When the legislature last amended the definition of "highway"
in Code § 46.2-100 by Acts 1979, c. 100, it added the following
language:
and, for law-enforcement purposes, the entire
width between the boundary lines of all
private roads or private streets which have
been specifically 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.
Code § 46.2-100 (emphasis added). See Kay Management Co., Inc. v.
Creason, 220 Va. 820, 830 n.3, 263 S.E.2d 394, 401, n.3 (1980).
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Furthermore, Mitchell's suggestion that only the second
prong of the highway definition applies to the implied consent
law because that law is enacted for law enforcement purposes
would lead to a result incompatible with the statutory purpose.
We find no basis to attribute to the General Assembly an intent
that the implied consent law would only apply to drivers on
formerly "private roads or private streets which have been
specifically designated 'highways' by an ordinance." Code
§ 46.2-100. Obviously, the implied consent law was designed to
apply to the operation of motor vehicles on the broad range of
roads described by the language within both prongs of the
definition of highway.
We are cognizant that, as a general rule, "'governmental
regulations with respect to the operation of motor vehicles
ordinarily are applicable only to operation on public streets and
highways, and do not apply to operation on private premises,
including operation on a private driveway or a private road.'"
Parker v. DeBose, 206 Va. 220, 223, 142 S.E.2d 510, 512 (1965)
(quoting 60 C.J.S., Motor Vehicles, § 349, pp. 815-816).
However, Furman clearly holds that for purposes of determining
whether roads are private (and thus exempt from application of
enforcement of the motor vehicle laws) or a "highway" (and not
exempt from enforcement of the motor vehicle laws), courts must
focus "upon the degree to which the way is open to public use for
vehicular traffic." 234 Va. at 439, 362 S.E.2d at 710. See also
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Kay Management, 220 Va. 820, 831-32, 263 S.E.2d 394, 401 (1980)
(holding a street in an apartment complex was a highway); cf.
Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
(holding that a service station lot was not a highway).
This Court in Flinchum v. Commonwealth, 24 Va. App. 734, 485
S.E.2d 630 (1997), analyzed the Furman and Prillaman decisions
and ruled that the Furman test was the basis for determining
whether the parking lot of a sporting goods store was a highway.
Although the Court applied the Furman test, the Court ruled that
the facts of the case were more akin to the facts in Prillaman
and held that the parking lot was not a highway. Id. at 736-37,
485 S.E.2d at 631. Significantly, the Court did not limit its
analysis to the second prong of the highway definition of Code
§ 46.2-100 and did not hold that only the second prong of the
definition was applicable in a criminal proceeding.
Similarly, in reviewing a conviction under the habitual
offender statute, this Court was required to determine whether a
road was a "highway" for enforcement of Code § 46.2-357. See
Coleman v. Commonwealth, 16 Va. App. 747, 750, 433 S.E.2d 33, 35
(1993). We ruled that the roads inside a federal enclave were
not private where the "[a]ccess through the rear gate is
unlimited when that gate is open" and the minimal restriction
provided by the continuously-manned security gates at the
entrances was for the purpose "of checking in and out those
vehicles that do not display registration decals." Id. at 749,
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433 S.E.2d at 35. In holding that the road was a "highway" for
law enforcement purposes, the Coleman decision also relied upon
the Supreme Court's ruling in Furman and the definition of
highway in Code § 46.2-100. Thus, Coleman implicitly held that,
for law enforcement purposes, the term "highway" is defined by
reference to either prong of the definition of "highway"
contained in Code § 46.2-100.
For these reasons, we hold that the implied consent law
applies to any way or place encompassed within the two-prong
definition of "highway" contained in Code § 46.2-100. We further
hold that no evidence in this record proved that the streets in
the mobile home complex were "restricted exclusively to the
private use of the [mobile home] dwellers or those persons who
visited them." Kay Management, 220 Va. at 830, 263 S.E.2d at
401. Indeed, the evidence proved that the roads in the mobile
home complex were open to the unrestricted use of the public.
We, therefore, hold that the implied consent law applied to
Mitchell when he operated his vehicle on the roads of the mobile
home complex. Accordingly, the trial judge did not err in
admitting into evidence the certificate of analysis.
III.
Unlike Code § 18.2-268.2, which applies only when a person
operates a motor vehicle on a highway, Code § 18.2-266 is
generally silent as to the place where the offense may be
committed. Code § 18.2-266 reads as follows:
It shall be unlawful for any person to drive
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or operate any motor vehicle, engine or train
(i) while such person has a blood alcohol
concentration of 0.08 percent or more by
weight by volume or 0.08 grams or more per
210 liters of breath as indicated by a
chemical test administered as provided in
this article, (ii) while such person is under
the influence of alcohol, (iii) while such
person is under the influence of any narcotic
drug or any other self-administered
intoxicant or drug of whatsoever nature, or
any combination of such drugs, to a degree
which impairs his ability to drive or operate
any motor vehicle, engine or train safely, or
(iv) while such person is under the combined
influence of alcohol and any drug or drugs to
a degree which impairs his ability to drive
or operate any motor vehicle, engine or train
safely. A charge alleging a violation of
this section shall support a conviction under
clauses (i), (ii), (iii) or (iv).
For the purposes of this section, the term
"motor vehicle" includes mopeds, while
operated on the public highways of this
Commonwealth.
This Court recently precisely addressed the other issue
raised in this appeal, i.e., whether the "conviction must be
reversed because Code § 18.2-266 does not apply to driving on
private property in Virginia while under the influence of
alcohol." Gray v. Commonwealth, 23 Va. App. 351, 352, 477 S.E.2d
301, 302 (1996). Citing Valentine v. Brunswick County, 202 Va.
696, 119 S.E.2d 486 (1961), this Court reasoned as follows:
Code § 18.2-266 is "clear, unambiguous and
means what it says." Other than for the
operation of a moped, the statute does not
specify that the driving or operating that it
criminalizes must occur on a public highway,
and we decline the invitation to construe the
statute to impose that requirement. . . .
Code § 18.2-266 "is not a highway regulation
and cannot be construed as part of the
general codification of the State motor
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vehicle laws."
Gray, 23 Va. App. at 353, 477 S.E.2d at 302-03 (citation
omitted). We, therefore, hold that public ownership of the
property upon which the vehicle is driven or operated is not an
element the Commonwealth must prove in a prosecution for driving
in violation of Code § 18.2-266.
For these reasons, we affirm the judgment.
Affirmed.
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