COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

RUFUS EUGENE FLINCHUM, JR. 

 OPINION BY 

v. Record No. 1891-96-3 CHIEF JUDGE NORMAN K. MOON 

 MAY 27, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 (Robert M. Jenkins; Jenkins & Jenkins, on 

brief), for appellant. 

 (James S. Gilmore, III, Attorney General; 

Kathleen B. Martin, Assistant Attorney 

General, on brief), for appellee. Appellee 

submitting on brief. 

 Rufus Eugene Flinchum, Jr. appeals his conviction of driving 

after having been declared an habitual offender in violation of 

Code § 46.2-357. Flinchum asserts that the trial court erred in 

finding that he was operating his vehicle on a "highway" as 

defined by Code § 46.2-100. We agree and reverse. 

 On November 1, 1995, Officer Dalton Reid of the 

Christianburg Police Department observed a vehicle "doing 

doughnuts" in the parking lot of a sporting goods store at 9:00 

p.m. He then observed the vehicle drive from the sporting goods 

parking lot into an adjacent parking lot in front of a car repair 

business. Reid testified that he did not see the vehicle drive 

on Route 11, which runs in front of both businesses. 

Subsequently, Flinchum was determined to be the operator of the 

vehicle and was arrested for driving a vehicle after having been 
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declared an habitual offender. 

 At trial, Flinchum testified that he had not driven on Route 

11 and that he had only driven in the parking lots of the 

sporting goods store and the repair business. A "no trespassing" 

sign was posted on the auto shop's property. 

 Code § 46.2-100 defines "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, 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. 

"[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." Furman v. Call, 234 Va. 437, 439, 362 S.E.2d 

709, 710 (1987) (citing Kay Management v. Creason, 220 Va. 820, 

831-32, 263 S.E.2d 394, 401 (1980)). In Kay Management, the 

Court held that "evidence of accessibility to the public for free 

and unrestricted use gave rise to a prima facie presumption" that 

the streets in an apartment complex, which were privately owned 

and maintained, were "highways" for law enforcement purposes. 

220 Va. at 832, 263 S.E.2d at 402. 

 The Court reached the same conclusion in Furman where it 

considered whether the parking area of a condominium office 

complex was encompassed within the legal definition of highway. 

234 Va. at 439, 362 S.E.2d at 710. The Furman Court found that 
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even though the lot was posted with signs stating "Private 

Property" and "No Soliciting," the lot was a highway within the 

meaning of the statutory definition because public access was 

unrestricted. Id. at 441, 362 S.E.2d at 711. The Court noted 

that "[t]he roads around and in the complex . . . have never been 

closed to the public; the complex is open for vehicular traffic 

24 hours a day, seven days a week. No guard or barricade system 

prevents the public from driving at will through the complex." 

Id. at 438, 362 S.E.2d at 710. The Court further noted that 

"[t]he only signs read: `Private Property, No Soliciting.' 

Clearly the purpose of the signs is to prohibit soliciting not 

the entry of motor vehicles operated by members of the public." 

Id. at 441, 362 S.E.2d at 711. 

 However, in Prillaman v. Commonwealth, 199 Va. 401, 100 

S.E.2d 4 (1957), the Supreme Court held that a gas station lot 

was not a highway within the meaning of the statutory definition. 

 In Prillaman, the defendant drove his car from the rear to the 

front of a service station lot. The Court found that the lot was 

not open to the public; instead it determined that "the premises 

. . . were open to the public upon [the owner's] 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 over their use." Id. at 

407-08, 100 S.E.2d at 8-9. 
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 Unlike Prillaman, the Furman and Kay Management decisions 

were not based solely on the statutory definition of highway. 

Instead, these decisions employed a broader consideration of 

public access and use.1 However, while broadening the scope of 

review, Furman and Kay Management did not reverse Prillaman, and 

in fact Furman observed that Prillaman "discussed public 

maintenance and common enjoyment in evaluating whether a way is a 

`highway.'" Furman, 234 Va. at 440, 362 S.E.2d at 711. 

 Here, the facts are similar to those of Prillaman. In 

accord with Prillaman's consideration of the public access and 

use factors that controlled in Furman and Kay Management, we hold 

that the lots traversed by Flinchum were not "highways" within 

the statutory meaning of that term. The sporting goods' and 

repair business' parking lots were not open to the public at all 

times, but instead "were open to the public upon . . . 

invitation." Prillaman, 199 Va. at 407, 100 S.E.2d at 8. This 

intent was demonstrated by the posted "no trespassing" sign, 

which clearly served to "prohibit . . . the entry of motor 

vehicles operated by members of the public." Furman, 234 Va. at 

441, 362 S.E.2d at 711. Further, either of the businesses "could 

close [their] doors and bar the public or any person from 

 

 1 The Furman Court observed that "[a]lthough the Prillaman

Court discussed public maintenance and common enjoyment in 

evaluating whether a way is a `highway,' that language is dicta. 

 The case was decided solely on the basis of the statutory 

definition of `highway,' which requires only that the way be 

`open to the use of the public for purposes of vehicular 

travel.'" 234 Va. at 440, 362 S.E.2d at 711. 
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vehicular travel on all or any part of [their] premises at will." 

Prillaman, 199 Va. at 408, 100 S.E.2d at 9. 

 Therefore, we hold that the parking lots upon which Flinchum 

traversed were improperly classified as "highways" under Code 

§ 46.2-100, and accordingly, we reverse. 

 Reversed.