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

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 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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