                     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.



                                - 2 -
      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.


                                - 3 -
     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.

                              - 4 -
           *      *         *        *      *      *        *

          "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


                                    - 5 -
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

                                - 6 -
          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

                                 - 7 -
          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


                                 - 8 -
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

                               - 9 -
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.




                              - 10 -
