COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
GEORGE LEONARD UNDERWOOD
MEMORANDUM OPINION * BY
v. Record No. 1805-99-2 JUDGE ROBERT J. HUMPHREYS
JUNE 13, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Aubrey R. Bowles, IV (Bowles & Bowles, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The appellant, George Leonard Underwood, was convicted in a
bench trial of driving a motor vehicle "on the highways of the
Commonwealth" after being declared a habitual offender pursuant
to Code § 46.2-357(A). At trial, Underwood stipulated that he
drove a motor vehicle and that, at the time he did so, his
privilege to drive had been suspended pursuant to an order
declaring him to be a habitual offender. The sole issue for the
trial court and for this Court on appeal is whether Underwood's
driving of a motor vehicle took place on a "highway of the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth." For the following reasons, we affirm Underwood's
conviction.
A police officer observed appellant driving on a marked
roadway of Chesterfield Towne Center, a shopping center. When
questioned by police, appellant admitted driving but said, "I
didn't think you could catch me in a parking lot." The roadway
was marked for two lanes of travel and was controlled with stop
signs.
Code § 46.2-100 defines "highway" as:
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 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.
Underwood argues that the roadway through Chesterfield
Towne Center is not a "way or place open to the use of the
public for vehicular travel," but rather private property
subject to public access being restricted by its owner.
"[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)).
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The Supreme Court of Virginia in Prillaman v. Commonwealth,
199 Va. 401, 100 S.E.2d 4 (1957), found that where premises are
open only for private business purposes and where the owner has
complete control over their use, a parking lot is not a public
highway.
In Kay Management, 220 Va. at 831-32, 263 S.E.2d at 401-02,
the Supreme Court of Virginia 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 402. 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. 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.
In Furman, the Supreme Court considered the question again in
a case involving an office complex parking lot where privately
owned roads in and surrounding a parking area "have always been
open to the public 24 hours a day, seven days a week" and
"[a]ccess by the public has never been denied by guards, gates, or
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any other device." 234 Va. 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, No Soliciting," the lot was a highway
within the statutory definition because public access was "full
and unrestricted." See id. at 441, 362 S.E.2d at 711.
In Flinchum v. Commonwealth, 24 Va. App. 734, 485 S.E.2d
630 (1997), and again in Roberts v. Commonwealth, 28 Va. App.
401, 504 S.E.2d 890 (1998), we held that a parking lot
containing no marked lanes of traffic or traffic control signs,
was not a "highway of the Commonwealth."
In the present case, the Commonwealth's evidence was
sufficient to prove beyond a reasonable doubt that appellant
drove on a road within a parking lot, which although privately
owned, was marked as a two-lane roadway, was governed by signs
for traffic control, and was open to the public at all times.
Therefore, we find that the trial court did not err in finding
that appellant drove upon a "highway of the Commonwealth," and
we affirm appellant's conviction of driving after being declared
a habitual offender.
Affirmed.
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George Leonard Underwood v. Commonwealth of VA
Combined Opinion