COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Senior Judge Coleman 

APRIL NOELLE LAWRENCE BAHEN 

 MEMORANDUM OPINION* BY 

v. Record No. 0436-03-1 JUDGE SAM W. COLEMAN III 

 OCTOBER 26, 2004 

CITY OF HAMPTON 

 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Wilford Taylor, Jr., Judge 

 (April N. L. Bahen, pro se, on brief). Appellant submitting on 

 brief. 

 (Lesa J. Yeatts, Deputy City Attorney, on brief), for appellee. 

Appellee submitting on brief. 

 On appeal from an order finding her guilty of speeding, April Noelle Lawrence Bahen 

(appellant) contends the trial court erred in excluding evidence that the speed limit at the location 

where she was stopped had not been lawfully established. Finding the trial court erred in excluding 

appellant’s proffered evidence, we reverse and remand appellant’s case for further proceedings. 

FACTS

 At appellant’s trial for speeding, the City of Hampton presented evidence that a police 

officer, using a radar device, detected appellant driving a motor vehicle at forty-one miles per hour 

on West County Street on September 22, 2002. The posted speed limit in the area was thirty miles 

per hour. The officer issued appellant a summons for speeding, citing Code § 46.2-878 and 

Hampton City Code § 21.1. The appellant, in her defense, attempted to offer evidence to prove that 

the speed limit on West County Street had not been lawfully established. Appellant proffered that 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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the testimony of Lynn Allsbrook, a traffic engineer for the City of Hampton, would have been 

that Allsbrook searched the City’s records from January 1980 to September 2002, and the search 

revealed no traffic engineering investigations for the portion of County Street where appellant 

was stopped.1

 The trial court ruled that the appellant could not challenge in this manner the city 

ordinance establishing the speed limit and held that the testimony of Allsbrook was irrelevant and 

inadmissible. The trial court found appellant guilty of speeding. 

ANALYSIS

 Section 21-1 of the Code of the City of Hampton adopts and incorporates by reference 

Title 46.2 of the Code of Virginia, which contains the provisions applicable to motor vehicles.2

 

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 On appeal, appellant asserts numerous other facts in support of her contention that the 

speed limit had not been lawfully established. However, she neither proved, nor proffered, that 

evidence at trial. The other evidence she alludes to was the erection date of the traffic sign 

governing the speed limit at the location and the absence of an applicable and contemporaneous 

engineering study. Appellant also contends on brief the trial court erred in refusing to consider 

the testimony of her father-in-law, an engineer. However, appellant’s limited proffer at trial was 

the Allsbrook letter stating he found no relevant engineering study in his search of city records 

from 1984 to 2002, the date of the speeding violation, in support of the established speed limit. 

Therefore, this Court will consider on appeal only the trial court’s ruling excluding Allsbrook’s 

testimony. We do not address whether the foregoing evidence would have been relevant and 

admissible. See Rule 5A:18; Zelenak v. Commonwealth, 25 Va. App. 295, 302, 487 S.E.2d 873, 

876 (1997) (en banc). 

2

 Hampton City Code § 21-1 provides: 

(a) Pursuant to the authority of section 46.2-1313 of the Code of 

Virginia, 1950, as amended, all of the provisions and requirements 

of the laws of the state contained in Title 46.2 of the Code of 

Virginia, as amended, and as amended in the future, except those 

provisions and requirements the violation of which constitutes a 

felony, and except those provisions and requirements which, by 

their very nature, can not have application to or within the city, are 

hereby adopted and incorporated in this chapter by reference and 

made applicable within the city. Reference to “highways of the 

state” contained in such provisions and requirements hereby 

adopted shall be deemed to refer to the streets, highways and other 

public ways within the city. Such provisions and requirements are 

hereby adopted and made a part of this chapter as fully as though 

set forth at length herein, and it shall be unlawful for any person 
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Significantly, Section 21-1 provides that reference to “highways of the state” contained in the 

Title 46.2 of the Code of Virginia “shall be deemed to refer to the streets, highways and other 

public ways within the city.” 

 Generally, 

the maximum speed limit shall be 55 miles per hour on interstate 

highways or other limited access highways with divided roadways, 

nonlimited access highways having four or more lanes, and all 

state primary highways. 

 The maximum speed limit on all other highways shall be 55 

miles per hour if the vehicle is a passenger motor vehicle . . . . 

Code § 46.2-870. However, “[t]hat general rule is subject to many statutory exceptions.” Bahen 

v. County of Henrico, 30 Va. App. 227, 229, 516 S.E.2d 250, 251 (1999). One such exception is 

in Code § 46.2-1300, which provides in pertinent part: 

The governing body of any county, city, or town may by 

ordinance, or may by ordinance authorize its chief administrative 

officer to: 

 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 . . . . 

Code § 46.2-1300(A)(1). Hampton City Code § 21-108 authorizes the Hampton city manager 

“to increase or decrease the speed of all streets maintained by the city; provided, that such areas 

or points are clearly indicated by markers or signs and such speed shall be based on an 

 

within the city to violate or fail, neglect or refuse to comply with 

any provision of Title 46.2 of the Code of Virginia, which is 

adopted by this section; provided, that in no event shall the penalty 

imposed for the violation of any provision or requirement hereby 

adopted exceed the penalty imposed for a similar offense under 

Title 46.2 of the Code of Virginia. 

(b) All definitions of words and phrases contained in the state law 

hereby adopted shall apply to such words and phrases, when used 

in this chapter, unless clearly indicated to the contrary. 
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engineering or traffic investigation pursuant to section 46.2-1300 of the Code of Virginia.” 

However, “[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 . . . .” Code § 46.2-878 (emphasis added). 

 Appellant contends the trial court erred by excluding Allsbrook’s testimony because it 

was relevant in that it tended to rebut the presumption provided by Code § 46.2-878 that the 

speed limit properly had been decreased on West County Street from fifty-five to thirty miles per 

hour. Evidence “is relevant if it has any logical tendency to prove an issue in a case. Relevant 

evidence may be excluded only if the prejudicial effect of the evidence outweighs its probative 

value.” Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 127 (1996) (citation 

omitted). 

 Allsbrook’s proffered testimony tended to prove, although not conclusively establish, that 

no traffic or engineering study had been performed as required by Code § 46.2-1300 in order to 

establish a thirty-mile-per-hour speed limit on West County Street. Thus, the evidence was 

relevant and admissible, and the trial court erred by ruling that appellant could not challenge the 

speed limit and by refusing to admit or consider Allsbrook’s evidence in order to rebut the 

presumption. 

 Moreover, we cannot say that, had the trial judge ruled appellant could present evidence 

to rebut the legality of the posted speed limit, the trial judge would have found Allsbrook’s 

testimony insufficient to rebut the statutory presumption of Code § 46.2-878. Accordingly, the 

trial judge’s error in excluding the evidence was not harmless error. See Scott v. 

Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620 (1994) (nonconstitutional error is 

harmless if “‘it plainly appears from the record and the evidence given at trial that the error did 
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not affect the verdict’” (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 

S.E.2d 910, 911 (1991) (en banc))). 

CONCLUSION

 For the foregoing reasons, we reverse and remand appellant’s speeding citation for 

further proceedings consistent with this opinion, if the City be so advised. 

 Reversed and remanded.