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FEBRUARY 15, 2000

Record No. 0591-99-1





Mosby G. Perrow, III, Judge

Present: Judges Coleman, Elder and Senior Judge

Argued by teleconference

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


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 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
[2] "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 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.
, 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 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 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.
, 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.



[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

[2] 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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