Lynn B. Haack v. Fairfax County ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
LYNN B. HAACK
v. Record No. 1543-95-4 MEMORANDUM OPINION * BY
JUDGE CHARLES H. DUFF
FAIRFAX COUNTY JULY 2, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
Mark J. Yeager for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Lynn B. Haack (appellant) appeals from a judgment of the
Circuit Court of Fairfax County finding her guilty of driving
while intoxicated in violation of a Fairfax County ordinance. 1
Appellant argues that the trial court should have excluded the
certificate of analysis resulting from appellant's breath test
because she did not operate a vehicle upon a "highway" as defined
by Code § 46.2-100, thus triggering the application of Virginia's
implied consent law. We disagree and affirm appellant's
conviction.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
1
The section under which appellant was convicted, Fairfax
County Code § 82-1-6, adopted and incorporated by reference
Virginia Code §§ 18.2-266 and 18.2-268.2.
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the
facts proved that Officer Kiernan of the Fairfax County Police
stopped appellant for driving erratically at approximately 12:10
a.m. on September 30, 1994. The road upon which appellant was
travelling was a two lane "service road" connecting Route 29 to a
shopping center. The road was open to the public and provided
access to the parking lot and the adjoining road. Kiernan
testified that the road was a "highway." 2 On cross-examination,
Kiernan said he was not sure whether the "service road" was a
"public highway."
Kiernan arrested appellant for driving while intoxicated at
12:37 a.m., after she performed unsatisfactorily on field
sobriety tests. Appellant elected the breath test. The
certificate of analysis indicated appellant's blood alcohol
concentration was .21 percent.
Virginia's implied consent law applies to "[a]ny person,
whether licensed by Virginia or not, who operates a motor vehicle
upon a highway, as defined in § 46.2-100, in this Commonwealth
. . . if he is arrested for violation of § 18.2-266 or
§ 18.2-266.1 or of a similar ordinance within two hours of the
2
Appellant argues that the trial court erroneously admitted
Kiernan's opinion testimony that the road was a "highway."
Because this was not an issue raised in the petition for appeal
and granted by this Court, we do not address it. See Cruz v.
Commonwealth, 12 Va. App. 661, 664, n.1, 406 S.E.2d 406, 407, n.1
(1991).
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alleged offense." Code § 18.2-268.2. 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, 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.
"[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)). The Furman Court
concluded that, although posted with signs stating "private
property" and "no soliciting," a condominium parking lot was a
"highway" because public access to the lot was unrestricted.
In Coleman v. Commonwealth, 16 Va. App. 747, 750, 433 S.E.2d
33, 35 (1993), we found a road located inside a federal enclave
to be a "highway" within the definition of Code § 46.2-100. We
noted that the minimal restriction provided by the continuously
manned security gates at the entrances to the enclave "in no way
constitute[d] an appropriation of the property to private use."
Coleman, 16 Va. App. at 749, 433 S.E.2d at 35.
Here, the evidence demonstrated that the road upon which
appellant travelled when Kiernan stopped her was open for use by
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the public. It provided unrestricted vehicular access to a
shopping center from a thoroughfare. Thus, the road was a
"highway" as defined in Code § 46.2-100, and Virginia's implied
consent statute applied to appellant when she drove upon it.
Consequently, the trial court did not err in admitting the
certificate of analysis.
Affirmed.
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