COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference
VICKY WOLFORD WHITE
MEMORANDUM OPINION * BY
v. Record No. 0591-99-3 JUDGE LARRY G. ELDER
FEBRUARY 15, 2000
CITY OF LYNCHBURG
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Darren Shoen, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
(Mark B. Arthur, Assistant Commonwealth's
Attorney; Office of the Commonwealth's
Attorney, on brief), for appellee.
Vicky Wolford White (appellant) appeals from her bench trial
conviction for driving under the influence of alcohol pursuant to
Lynchburg Ordinance § 25-162, which roughly parallels the language
of Code § 18.2-266. On appeal, she contends that the trial court
erred in admitting the certificate of analysis showing her blood
alcohol content because she was driving on private property rather
than a "highway" as defined in Code § 46.2-100 and, therefore, did
not impliedly consent to the taking of her blood and analysis of
her blood alcohol content. We hold that the parking lot in which
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
she was observed driving was not a "highway" within the meaning of
Code § 46.2-100, and we reverse her conviction.
Code § 18.2-268.2(A) provides in relevant part as follows:
Any person . . . who operates a motor vehicle
upon a 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 § 18.2-266.1 or of a similar
ordinance . . . .
Code § 46.2-100 defines a 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." 1 "The definition of 'highway' includes
'ways on private property that are open to public use for
vehicular travel.'" Mitchell v. Commonwealth, 26 Va. App. 27, 31,
492 S.E.2d 839, 841 (1997). Therefore, "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
1
That code section also defines "highway" to include, "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." The record contains no evidence
that Lynchburg has adopted such an ordinance.
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to public use for vehicular traffic.'" Id. at 33, 492 S.E.2d at
842 (quoting Furman v. Call, 234 Va. 437, 439, 362 S.E.2d 709, 710
(1987)).
Our recent holding in Roberts v. Commonwealth, 28 Va. App.
401, 504 S.E.2d 890 (1998), compels the conclusion that the
apartment complex parking lot in which appellant drove was not a
"highway" for purposes of the implied consent statute. Roberts
involved the arrest of a driver in a convenience store parking
lot. See id. at 402, 504 S.E.2d at 890. Roberts presented
evidence that the convenience store property was accessible to the
public but was privately owned and that access was restricted to
those entering to do business with the convenience store. See id.
at 403, 504 S.E.2d at 891. The manager testified that she was
authorized to ask persons to leave the property, including the
parking lot, and that she previously had requested police
assistance to remove people from the property, some of whom were
charged with trespassing. See id. "Based upon the restricted
public access to the premises," we held that "the [convenience
store] parking lot . . . was not a 'highway' as defined by Code
§ 46.2-100." Id. at 406, 504 S.E.2d at 892. Compare id. with Kay
Management Co. v. Creason, 220 Va. 820, 830, 263 S.E.2d 394, 401
(1980) (holding that roadway within apartment complex was a
highway within the meaning of Code § 46.1-1(10), a predecessor to
Code § 46.2-100, because "[t]here [was] no evidence that the . . .
roadways of the complex were restricted exclusively to the private
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use of the apartment dwellers or those persons who visited them");
Furman, 234 Va. at 440-41, 362 S.E.2d at 711 (holding that lot in
condominium office complex was a highway because, although it was
posted with "Private Property" and "No Soliciting" signs,
"[a]ccess to the public ha[d] never been denied by guards, gates,
or any other device" and was "full and unrestricted"); Mitchell,
26 Va. App. at 29, 492 S.E.2d at 839-40 (holding that road in
mobile home complex was a highway because it was open for use by
public vehicular traffic, it was not posted, and persons who drove
on it were not arrested for trespassing).
The facts in appellant's case closely resemble those in
Roberts. Although physical entry into the Greenfield Apartments
parking lot was not restricted by gates or other physical
barriers, clearly posted signs prohibited trespassing and
loitering. Rather than simply relying on the police to enforce
this no trespassing policy, as the merchant in Roberts did, the
apartment complex's owner took the additional step of employing
private security guards like Scott Bradner, the guard who
approached appellant, to patrol the lot and take action against
trespassers. That Bradner typically waited a few minutes before
approaching a person entering the parking lot to determine whether
he or she was a trespasser rather than a resident or guest does
not negate this determination.
Therefore, the implied consent statute, Code § 18.2-268.2,
did not justify admission of the certificate of analysis into
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evidence. However, because neither Virginia's DUI statute nor the
related Lynchburg ordinance under which appellant was charged
requires that the act of driving occur in any particular place,
such as on a highway, see Gray v. Commonwealth, 23 Va. App. 351,
352-53, 477 S.E.2d 301, 302 (1996), our ruling does not prevent
appellant's prosecution for the charged offense. We therefore
reverse appellant's conviction and remand to the trial court for
further proceedings consistent with this opinion.
Reversed and remanded.
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