Johnnie Lang Edwards,a/k/a Samuel Jones v. VA Beach

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
JOHNNIE LANG EDWARDS, A/K/A
SAMUEL JONES
MEMORANDUM OPINION * BY
v. Record No. 2751-00-1 JUDGE ROBERT P. FRANK
SEPTEMBER 25, 2001
CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Theresa B. Berry (Berry, Ermlich, Lomax &
Bennett, on brief), for appellant.
Lawrence S. Spencer, Jr., Assistant City
Attorney (Leslie L. Lilley, City Attorney, on
brief), for appellee.
Johnnie Lang Edwards (appellant) was convicted in a bench
trial of driving under the influence, in violation of Virginia
Beach City Ordinance 21-336, which incorporates by reference
Virginia Code § 18.2-266. On appeal, he contends that Code
§ 18.2-268.2 entitles him to a breathalyzer test and, therefore,
the trial court erred in finding appellant guilty of driving
under the influence since he was never administered such a test.
Finding no error, we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On May 8, 2000, Officer S.E. Wichtendahl was on routine
patrol in the City of Virginia Beach. Sometime after 9:00 p.m.,
he received a radio message to "be on the lookout" for a driver
who was apparently intoxicated. At 9:25 p.m., he located a
truck which matched the description in the radio dispatch. He
then saw appellant backing a truck into a parking space in the
private lot of a Chick-Fil-A restaurant. At no time did he see
appellant on a public street or highway.
Officer Wichtendahl testified he saw appellant exit the
vehicle, stagger toward the restaurant, and lean on the door as
he entered the establishment. The officer saw appellant lean on
the counter as he ordered his food. When Officer Wichtendahl
finally approached appellant, he noticed appellant smelled of
alcohol, had bloodshot eyes, and was unsteady on his feet.
Officer Wichtendahl asked appellant to walk outside with
him and perform some field sobriety tests. Appellant exited
with the officer and attempted to perform several tests, but he
was unable to complete them successfully. Officer Wichtendahl
then arrested appellant for being drunk in public.
Officer Wichtendahl took appellant before a magistrate and
obtained a warrant for driving while under the influence, in
violation of the Virginia Beach ordinance, which incorporates
Code § 18.2-266 by reference.
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While at the magistrate's office, appellant stated he had
not been given a breath test. Officer Wichtendahl responded he
was not required to give appellant a breath test because
appellant was arrested on the private property of Chick-Fil-A
restaurant. The statement of facts, submitted by appellant's
counsel, also acknowledged, "[appellant] did not request a
breath test."
Appellant testified he was doing landscape work earlier in
the day and was eating french fries in the Chick-Fil-A when the
officers arrived. According to appellant, immediately upon
seeing him, the police arrested him. He claimed he did not
attempt to perform any field sobriety tests.
Appellant testified he repeatedly asked for a breath test
and asked the officers how they could arrest him for driving
under the influence.
Appellant argued he was entitled to a breath test in
accordance with Code § 18.2-268.2. The trial court found
appellant guilty of driving while under the influence.
ANALYSIS
Essentially, appellant contends that Code § 18.2-268.2
imposes an independent duty upon the City to give him a breath
test. 1
1
Appellant does not contend that he is entitled to the
breath test as a substantive due process right. He limits his
argument to a "right" created by Code § 18.2-268.2.
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Code § 18.2-268.2 provides, in part,
A. Any person, whether licensed by Virginia
or not, 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 within two hours of the
alleged offense.
B. Any person so arrested for a violation
of § 18.2-266(i) or (ii) or both, or
§ 18.2-266.1 or of a similar ordinance shall
submit to a breath test. If the breath test
is unavailable or the person is physically
unable to submit to the breath test, a blood
test shall be given. The accused shall,
prior to administration of the test, be
advised by the person administering the test
that he has the right to observe the process
of analysis and to see the blood-alcohol
reading on the equipment used to perform the
breath test. If the equipment automatically
produces a written printout of the breath
test result, the printout, or a copy, shall
be given to the accused.
At the time of appellant's arrest, Code § 46.2-100 provided
the following definitions:
"Highway" means 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.
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* * * * * * *
"Private road or driveway" means every 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.
"'[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.'" Roberts v. Commonwealth, 28 Va. App.
401, 403, 504 S.E.2d 890, 891 (1998) (quoting Furman v. Call,
234 Va. 437, 439, 362 S.E.2d 709, 710 (1987)). Two lines of
cases are frequently cited when this analysis focuses on whether
a private area is a highway under Code § 46.2-100.
One line begins with Prillaman v. Commonwealth, 199 Va.
401, 100 S.E.2d 4 (1957). Prillaman, whose driver's license was
suspended, drove his car across a service station lot. The
Supreme Court found:
The premises of Setliff, owner and operator
of Master Forks Service Station, were open
to the public upon his invitation. The
invitation was for private business purposes
and for his benefit. He had the absolute
right at any time to terminate or limit this
invitation. He could close his doors and
bar the public or any person from vehicular
travel on all or any part of his premises at
will. He had complete control of their use.
Id. at 407-08, 100 S.E.2d at 8-9.
The Supreme Court reversed and dismissed Prillaman's
conviction of driving on a highway without a valid license,
concluding that the service station's premises were not "'open
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to the use of the public for the purpose of vehicular traffic'
and were, therefore, not a 'highway'" under the precursor to
Code § 46.2-100. Id. at 408, 100 S.E.2d at 9 (citing former
Code § 46-1(8) (1950)). Accord Flinchum v. Commonwealth, 24 Va.
App. 734, 737-38, 485 S.E.2d 630, 631-32 (1997) (finding a
parking lot of a sporting goods store was not a highway);
Roberts, 28 Va. App. at 404-06, 504 S.E.2d at 891-92 (finding a
parking lot of a convenience store was not a highway).
On the other hand, Kay Management Co. v. Creason, 220 Va.
820, 263 S.E.2d 394 (1980), found the streets of an apartment
complex were "highways." The following facts were significant:
Uncontradicted evidence discloses that Kay
serviced and managed the streets at its
expense, but posted traffic signs on the
access street and elsewhere "with the
direction" of the local police and fire
departments. It also appears from the
evidence that the streets were paved,
curbed, and bordered by sidewalks, and that
they contained painted lines marking spaces
for perpendicular parking. There is
evidence that the travel section of Barcroft
View Terrace was well-defined, extending 21
feet between the outer extremities of the
parking space lines and 31 feet between the
parked cars on each side. A single short
paved street or roadway provided the only
apparent entrance to the apartment complex
from Columbia Pike. There is no evidence
that the streets or roadways of the complex
were restricted exclusively to the private
use of the apartment dwellers or those
persons who visited them. There is no
evidence that access was denied to the
public by security guards, gates, or warning
signs. The streets contained parking spaces
for the convenience of apartment occupants,
and they carried traffic along the travel
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portions. The streets may have been
intended for the primary purpose of
providing parking areas for apartment
tenants, but there is no evidence that they
were constructed only for this purpose.
Id. at 830, 263 S.E.2d at 400-01.
The Supreme Court concluded,
[w]e hold that the evidence of accessibility
to the public for free and unrestricted use
gave rise to a prima facie presumption that
the streets of Barcroft View Apartments were
highways within the definition of Code
§ 46.1-1(10) [current Code § 46.2-100]. It
thereupon became Kay's burden to rebut the
presumption by showing that the streets were
used for vehicular travel exclusively by the
owners and those having either express or
implied permission from the owners. No such
evidence appears in the record.
Id. at 832, 263 S.E.2d at 402.
In Furman, the Supreme Court again addressed whether an
intersection in a condominium parking area was a "highway." In
finding that the Kay Management presumption controlled, the
Court held:
"In the present case, the evidence is
undisputed that the roads around and in the
condominium complex have always been open to
the public 24 hours a day, seven days a
week. Access by the public has never been
denied by guards, gates, or any other
device. The only signs read: "Private
Property, No Soliciting." (Emphasis added).
Clearly, the purpose of the signs is to
prohibit soliciting, not the entry of motor
vehicles operated by members of the public.
Because Furman has not rebutted this
evidence and the resulting presumption that
the public has full and unrestricted access
to the parking area, we hold that the area
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is a "highway" as defined by Code
§ 46.1-1(10)."
234 Va. at 440-41, 362 S.E.2d at 711.
In Mitchell v. Commonwealth, 26 Va. App. 27, 492 S.E.2d 839(1997), we ruled that roads within a mobile home complex were
"highways." The roads in the complex, while private, were open
for public use. We found "no evidence in this record proved
that the streets . . . were 'restricted exclusively to the
private use of the [mobile home] dwellers or those persons who
visited them.'" Id. at 34, 492 S.E.2d at 842 (quoting Kay
Management, 220 Va. at 830, 263 S.E.2d at 401).
The Kay Management line of cases all involve private roads
within a privately owned complex, where the private roads were
open to the public for vehicular travel.
Conversely, in the Prillaman line of cases, the private
areas were not streets for vehicular travel but were parking
lots allowing access to various commercial establishments.
The presumption created in Kay Management has no
application in parking lot cases. Roberts and Flinchum, both
parking lot cases decided after Kay Management, did not discuss
that presumption. Roberts, 28 Va. App. at 403-06, 504 S.E.2d at
891-92 (discussing Kay Management but not applying its
presumption of public use); Flinchum, 24 Va. App. at 735-38, 485
S.E.2d at 630-31 (declining to apply the Kay Management
presumption of public use). Their analysis instead addressed
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the specific facts of each case, i.e., "the degree to which the
way is open to the public use for vehicular traffic." Furman,
234 Va. at 439, 362 S.E.2d at 710.
Prillaman, Flinchum and Roberts control here. Appellant
was in the private parking lot of a Chick-Fil-A restaurant. No
evidence proved the parking lot was "open to the use of the
public for purposes of vehicular traffic." Code § 46.2-100.
The parking lot was only an access to the business, not a
thoroughfare for general vehicular traffic. From the evidence,
the fact finder could conclude that Chick-Fil-A "issued an
invitation to do business to the public" and that access "was
restricted to this invitation." Roberts, 28 Va. App. at 406,
504 S.E.2d at 892. Based on the nature of the parking lot and
the restricted public access to the premises, we find that the
parking lot was not a "highway" as defined by Code § 46.2-100.
We conclude that since the "implied consent" statute, Code
§ 18.2-268.2, is restricted by its terms to a "highway,"
appellant's contention that that section affords him a right to
a breathalyzer test fails. Since Code § 18.2-268.2 does not
apply under the facts of this case, we do not address whether
that statute affords a suspect such an entitlement.
CONCLUSION
Appellant's argument that he was denied a statutory right
to a breath test and therefore his conviction was unlawful is
based on a faulty premise. He was not entitled to the test
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under either the ordinance or the Code; therefore, his
conviction cannot be tainted by the failure to give him the
test. For this reason, we affirm his conviction.
Affirmed.
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