                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


JOHN J. BAHEN, JR.
                                                    OPINION BY
v.      Record No. 0500-98-2                JUDGE JAMES W. BENTON, JR.
                                                   JULY 6, 1999
COUNTY OF HENRICO


                FROM THE CIRCUIT COURT OF HENRICO COUNTY
                        L. A. Harris, Jr., Judge

             John J. Bahen, Jr., pro se.

             (Roger W. Frydrychowski, Assistant
             Commonwealth's Attorney, on brief), for
             appellee.


        A police officer issued a summons to John J. Bahen, Jr., for

driving thirty-five miles per hour in a zone with a posted speed

limit of twenty-five miles per hour.       The summons cited Code

§ 46.2-874 and Henrico Code § 22-2.     On appeal from a conviction

for speeding, Bahen contends the trial judge erred in ruling that

the street on which he was driving was in a "residence district."

We affirm the conviction.

                                   I.

        The facts concerning the event that gave rise to the issuance

of the summons are undisputed.    Bahen was driving south on Charles

Street where the speed limit was posted as twenty-five miles per

hour.    When he was between Park Avenue and West Franklin Street, a

radar device operated by a Henrico County police officer
registered the speed of Bahen's vehicle at thirty-five miles per

hour.    At trial, Bahen conceded he was driving in excess of the

posted speed limit.    Instead, relying on Brooks v. Painter, 225

Va. 400, 302 S.E.2d 66 (1983), and Thoms v. Dowdy, 201 Va. 581,

112 S.E.2d 868 (1960), Bahen argued that the portion of Charles

Street on which he was driving in excess of the twenty-five miles

per hour posted speed limit was not a "residence district," see

Code § 46.2-100, and, therefore, that the speed limit was

improperly posted as twenty-five miles per hour.

        After the police officer testified concerning the events that

caused him to issue the summons, Bahen sought to prove through

cross-examination of the officer and testimony of various County

traffic engineers that the character of the land contiguous to

Charles Street did not meet the definition of "residence

district."    At the conclusion of the evidence, the trial judge

ruled that the contiguous land "meets the definition of the

residence area, and is so properly speed limited at [twenty-five]

miles per hour."    The trial judge also found that Bahen had

conceded the accuracy of the radar and ruled that Bahen was

driving at thirty-five miles per hour in violation of the posted

limit.

                                  II.

        Generally, "[t]he maximum speed limit on . . . highways shall

be fifty-five miles per hour if the vehicle is a passenger motor

vehicle."    Code § 46.2-870.   That general rule is subject to many

                                 - 2 -
statutory exceptions.   See e.g. Code §§ 46.2-870 through 46.2-883.

For example, "[n]otwithstanding the other [statutory] provisions

[governing speed], the Commonwealth Transportation Commissioner or

other authority having jurisdiction over highways may decrease the

speed limits set forth in [Code] § 46.2-870 and may increase or

decrease the speed limits set forth in [Code] §§ 46.2-873 through

46.2-875 on any highway under its jurisdiction."   Code § 46.2-878.

Any speed limit that is increased or decreased pursuant to Code

§ 46.2-878 "shall be effective only when prescribed after a

traffic engineering investigation," which is filed as prescribed

in the statute, "and when indicated on the highway by signs."   Id.

The statute further provides that "[w]henever the speed limit on

any highway has been increased or decreased . . . and such speed

limit is properly posted, there shall be a rebuttable presumption

that the change in speed was properly established."   Id. 1


     1
         The full text of Code § 46.2-878 is as follows:

            Notwithstanding the other provisions of this
            article, the Commonwealth Transportation
            Commissioner or other authority having
            jurisdiction over highways may decrease the
            speed limits set forth in [Code] § 46.2-870
            and may increase or decrease the speed
            limits set forth in [Code] §§ 46.2-873
            through 46.2-875 on any highway under its
            jurisdiction; and may establish
            differentiated speed limits for daytime and
            nighttime by decreasing for nighttime
            driving the speed limits set forth in [Code]
            § 46.2-870 and by increasing for daytime or
            decreasing for nighttime the speed limits
            set forth in [Code] §§ 46.2-873 through
            46.2-875 on any highway under his [or her]

                                - 3 -
     In addition, the legislature has empowered "[t]he governing

bodies of counties, cities, and towns [to] adopt ordinances not in

conflict with the [Motor Vehicle Code] to regulate the operation

of vehicles on the highways in such counties, cities, and towns

. . . and may erect appropriate signs . . . on the highway showing

the general regulations applicable to the operation of vehicles on

such highways."   Code § 46.2-1300(A). 2   See also Nelson v. County


            jurisdiction. Such increased or decreased
            speed limits and such differentiated speed
            limits for daytime and nighttime driving
            shall be effective only when prescribed
            after a traffic engineering investigation
            and when indicated on the highway by signs.
            It shall be unlawful to operate any motor
            vehicle in excess of speed limits
            established and posted as provided in this
            section. The increased or decreased speed
            limits over highways under the control of
            the Commonwealth Transportation Commissioner
            shall be effective only when prescribed in
            writing by the Transportation Commissioner
            and kept on file in the Central Office of
            the Department of Transportation. Whenever
            the speed limit on any highway has been
            increased or decreased or a differential
            speed limit has been established and such
            speed limit is properly posted, there shall
            be a rebuttable presumption that the change
            in speed was properly established in
            accordance with the provisions of this
            section.
     2
         The full text of Code § 46.2-1300 is as follows:

            A. The governing bodies of counties,
            cities, and towns may adopt ordinances not
            in conflict with the provisions of this
            title to regulate the operation of vehicles
            on the highways in such counties, cities,
            and towns. They may also repeal, amend, or
            modify such ordinances and may erect

                                - 4 -
appropriate signs or markers on the highway
showing the general regulations applicable
to the operation of vehicles on such
highways. The governing body of any county,
city, or town may by ordinance, or may by
ordinance authorize its chief administrative
officer to:

   1. Increase or decrease the speed limit
within its boundaries, provided such
increase or decrease in speed shall be based
upon an engineering and traffic
investigation by such county, city or town
and provided such speed area or zone is
clearly indicated by markers or signs;

   2. Authorize the city or town manager or
such officer thereof as it may designate, to
reduce for a temporary period not to exceed
sixty days, without such engineering and
traffic investigation, the speed limit on
any portion of any highway of the city or
town on which work is being done or where
the highway is under construction or repair;

   3. Require vehicles to come to a full
stop or yield the right-of-way at a street
intersection if one or more of the
intersecting streets has been designated as
a part of the state highway system in a town
which has a population of less than 3,500.

B. No such ordinance shall be violated if
at the time of the alleged violation the
sign or marker placed in conformity with
this section is missing, substantially
defaced, or obscured so that an ordinary
observant person under the same
circumstances would not be aware of the
existence of the ordinance.

C. No governing body of a county, city, or
town may provide penalties for violating a
provision of an ordinance adopted pursuant
to this section which is greater than the
penalty imposed for a similar offense under
the provisions of this title.



                    - 5 -
of Henrico, 10 Va. App. 558, 393 S.E.2d 644 (1990) (decided under

Code § 46.1-180, the precursor to Code § 46.2-1300).    This statute

specifically authorizes the governing body or, when properly

delegated, the chief administrative officer to "[i]ncrease or

decrease the speed limit within its boundaries, provided such

increase or decrease in speed shall be based upon an engineering

and traffic investigation . . . and provided such speed area . . .

is clearly indicated by . . . signs."   Code § 46.2-1300(A)(1).

                                III.

     At trial and on this appeal, Bahen argued that the evidence

proved he was driving on a highway that was not in a "residence

district" as specified in Code § 46.2-874 and defined in Code

§ 46.2-100.   The record establishes that a substantial portion of

the proof at trial concerned that issue and the application of the

Brooks and Thoms decisions to the facts of this case.   Indeed, at

one point during the taking of the evidence the trial judge

indicated that "[we are] down to the very narrow issue of whether

it's a residence district or not."

     We conclude, however, that we need not determine whether the

County's interpretation of "residence district," which was


          D. No county whose roads are under the
          jurisdiction of the Department of
          Transportation shall designate, in terms of
          distance from a school, the placement of
          flashing warning lights unless the authority
          to do so has been expressly delegated to
          such county by the Department of
          Transportation, in its discretion.

                               - 6 -
accepted by the trial judge, comports with the Supreme Court's

holding in Brooks concerning the proper way to view "land improved

for dwelling purposes" as that term is used in the Code § 46.2-100

definition of "residence district."     See Brooks, 225 Va. at 404,

303 S.E.2d at 68-69. 3   The Commonwealth prosecuted Bahen for

violating the posted speed limit.    Bahen raised as his defense the

theory that the Commonwealth could not prevail absent proof that

he was in a "residence district."    Although much of the evidence

concerned the character of Charles Street and the definition of

"residence district," the following colloquy occurred during the

presentation of evidence:

          MR. BAHEN: I'm trying to establish that I
          was driving at a safe speed.

          THE COURT: Well, but again, you were not
          charged with driving unsafe. You're just
          charged with driving above the speed limit.
          So I really don't think that's relevant,
          unless you can tell me some reason that it
          would be, I'd be glad to hear it.

             I mean, you're not charged with reckless
          driving, and you're not charged -- you're
          just charged with a prohibited crime of
          driving above the posted speed limit, and
          that's it.

          MR. BAHEN: Your Honor, I would offer that
          I'm not charged with driving above the
          posted speed limit, I'm charged with


     3
       Although both Brooks and Thoms were negligence cases,
clearly the interpretation of "residence district" found in
those cases would be valid and applicable in a traffic violation
prosecution. We note, however, that in both of those cases, no
speed limit was posted. See Brooks, 225 Va. at 402, 302 S.E.2d
at 67; Thoms, 201 Va. at 582-83, 112 S.E.2d at 869-70.

                                - 7 -
          speeding in a residential district, Section
          874 of the Code of Virginia.

          THE COURT:   Yeah.

          MR. BAHEN:   Forty-six --

          THE COURT: Speed 35 miles per hour in a 25
          mile per hour zone is what the summons says.

          MR. BAHEN: The law section of the summons
          says 874, and 874 has -- there's nothing,
          nothing in 874 about the posted speed limit,
          Your Honor.

          THE COURT: The code section is merely
          advisory. The crime you're charged with is
          what is stated in the charge and that's
          speeding 35 miles per hour in a 25 mile per
          hour zone. They could put no code section
          or the wrong code section and that is not
          controlling. What is controlling is the
          stated word that gives you notice of what
          your charge is. So that's what I take it
          you're being charged with. All right? So
          is there any reason that it's relevant as to
          whether you were driving safely or unsafely?

          MR. BAHEN:   No further questions.

          THE COURT:   Thank you.

          MR. BAHEN: But I would like to further
          discuss the -- according to Your Honor that
          Commonwealth had every opportunity to amend
          the warrant if they thought they had a code
          section that I had violated . . . .

     The undisputed evidence at trial proved that the speed limit

for the portion of the highway on which Bahen was driving was

posted by a sign to be twenty-five miles per hour.   Bahen

concedes that he was exceeding the posted speed limit.    The Motor

Vehicle laws explicitly state that "[a]ll drivers of vehicles

shall obey lawfully erected signs."    Code § 46.2-830.

Furthermore, "[i]t shall be unlawful to operate any motor vehicle


                               - 8 -
in excess of speed limits established and posted as provided [by

the Commissioner or other authority having jurisdiction over

highways]."   Code § 46.2-878.   In applying these proscriptions in

cases where "the speed limit on any highway has been increased or

decreased . . . and such speed limit is properly posted, there

shall be a rebuttable presumption that the change in speed was

properly established in accordance with the provisions of this

section."   Code § 46.2-878.

     The testimony of the traffic engineer for the County

established that the records of the traffic engineering division

"go back to 1976 and . . . do not show that there has been a

change of speed limit since 1976."       He further testified that if

the posted speed limit was not the original speed limit, he had

no records to show a change.     No evidence in the record proved

whether the speed limit sign was initially posted by the County

or the Commissioner.   Accordingly, we hold that the evidence in

the record failed to rebut the presumption that the speed limit

was properly established.   Thus, we affirm the trial judge's

ruling that Bahen was driving in excess of the posted speed

limit.
                                                            Affirmed.




                                 - 9 -
