                    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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