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Kim v. Commonwealth

Supreme Court of Virginia

April 13, 2017


         PRESENT: All the Justices




         Matthew Alexander Kim ("Kim") appeals the trial court's judgment that he unreasonably refused to submit a breath sample in violation of Code § 18.2-268.3 because, according to Kim, he was on a private road that did not fall within the definition of a "highway" provided by Code § 46.2-100 at the time he was arrested and, therefore, he was not required to submit a breath sample.

         I. BACKGROUND

         The Avant Apartment complex is a private apartment complex located in Fairfax County. The complex is accessible by public roads, but the roads within the complex are privately maintained. There are parking spaces perpendicular to several of the roads within the complex. There are no physical barricades or security guards preventing entry by the public, but there are signs located at every entrance and throughout the complex indicating that Avant Apartment complex is "Private Property." The signs also explicitly state "No Soliciting, " "No Loitering, " "No Trespassing" and "Violators Will Be Prosecuted."

         On March 11, 2015, at approximately 4:30 a.m., Officer Richard Cash ("Officer Cash") of the Fairfax County Police Department was approached by a tow truck driver who patrols the Avant Apartment complex. At the tow truck driver's request, Officer Cash went to investigate a vehicle parked at 4702 Nathan Hale Drive within the Avant Apartment complex.[1] Upon arrival, Office Cash observed a vehicle parked "somewhat diagonally" in one of the parking spaces. The left rear wheel of the vehicle was on the grassy median next to the parking space. Officer Cash noted that the vehicle's lights, engine and radio were on and an individual, later determined to be Kim, was asleep in the front seat.

         Kim eventually awoke and Officer Cash observed that Kim appeared confused, lethargic and disoriented. When Kim got out of the vehicle, he was unsteady on his feet and lost his balance. Kim was asked to perform field sobriety tests and he agreed to do so. However, despite having spoken English for the previous five minutes, when Officer Cash attempted to administer the tests, Kim stated that he did not speak English. Kim then refused to undertake any further field sobriety tests, including a preliminary breath test. Kim was arrested on suspicion of drunk driving and taken to the police station for the administration of a breath test.

         At the police station, Kim was asked, through an interpreter, if he was willing to take a breath test. When Kim did not give an affirmative answer, Officer Cash advised Kim of the consequences of his refusal, as required under Code § 18.2-268.3(B). Kim then began cursing at Officer Cash in English and stated that "this is just a stupid DUI . . . I will be out in the morning." Officer Cash subsequently charged Kim with unreasonable refusal to submit a breath sample under Code § 18.2-268.3.

         At Kim's trial on the unreasonable refusal charge, the Commonwealth's evidence was limited to Officer Cash's testimony and related exhibits. On cross-examination, Officer Cash was asked to identify the sign in Commonwealth Exhibit 7.[2] Officer Cash identified the "No Trespassing" sign and "related that the sign was of the type found throughout the complex." He further testified that signs identical to the "the private property, no trespass and no loitering sign were located at all entry points into the [apartment] complex and at several points throughout the complex road network . . . including the intersections of Nathan Hale Drive with Commons and Patriot Drives, and Ethan Allen Lane, which comprised all the access points to the private Nathan Hale Drive."

         After the Commonwealth rested, Kim moved to strike the Commonwealth's evidence, arguing that the Commonwealth failed to prove that he was operating a motor vehicle on a "highway" as defined by Code § 46.2-100. Kim relied on the fact that the apartment complex's roadways were privately maintained and, in light of the "No Trespassing" signs posted at every entryway and throughout the complex, not open to use by the public. The Commonwealth responded that, because Nathan Hale Drive connected two public roads without any restriction to the public, it met the definition of a public highway.

         After considering the matter, the trial court denied Kim's motion, ruling that Nathan Hale Drive was a public highway as defined under Code § 46.2-100. In making its ruling, the trial court specifically found that there was no evidence that the owners of the apartment complex had ever closed the roads to the public or of any effort by the police to charge anyone who uses those roads with trespassing. The trial court relied on the fact that the "No Trespassing" signs at the entrances "did not say 'private road, only for the use of residents'" or contain any other indicator that the roads were solely for the use of the owners or those with express or implied permission.

         Kim then presented further evidence to support his argument that the streets of the complex were private roadways. Specifically, he pointed out that parking within the complex was by permit only.[3] He also presented testimony from his roommate that "[p]ersons having no valid business in the [apartment] complex are not allowed."

         After he rested and the Commonwealth indicated it had no further evidence, Kim renewed his motion to strike. He reincorporated the argument from his original motion to strike and further argued that the evidence showed that he was not parked on the allegedly public road when Officer Cash found him. Rather, he was parked in a private parking spot. According to Kim, the parking spots were akin to a private driveway. In response, the Commonwealth asserted that "the parking signs only restrict parking not travel." It further claimed that where, as here, "a private road [i.e., Nathan Hale Drive] attaches literally to a thoroughfare [i.e., Patriot Drive]" and "is not a dead end, " the proper inquiry is into the "use, character and being" of the road. The trial court again denied Kim's motion to strike.

         The trial court subsequently determined that Kim had unreasonably refused to submit a breath sample under Code § 18.2-268.3 and ordered that his license to drive be suspended for twelve months.

         Kim appeals.

          II. ANALYSIS

         To place the present case in context, it is useful to first review the statutes at issue. Code § 18.2-268.2(A), the implied consent law, provides that any person who is arrested for DUI while operating a motor vehicle "upon a highway, as defined in [Code] § 46.2-100, in the Commonwealth" is deemed to have consented to have samples of breath, blood or both, taken to determine the alcohol content of the person's blood. If the person, after having been advised by the arresting officer of the implied consent provisions, refuses to give the required breath or blood sample, he may be charged with unreasonable refusal under Code § 18.2-268.3. The first violation of Code § 18.2-268.3 is a civil offense, but subsequent violations are criminal offenses. Code § 18.2-268.3(D).

         Of particular import to the present case is the fact that Code § 18.2-268.2(A) only applies to the operation of a motor vehicle "upon a highway, as defined in § 46.2-100, in the Commonwealth." Kim has maintained throughout this case that Nathan Hale Drive was not a highway as defined by Code § 46.2-100. If Kim is correct, then he could not have been found to have unreasonably refused to submit a breath sample under Code § 18.2-268.3 because the implied consent statute had no applicability.

         Code § 46.2-100 defines a 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, (i) the entire width between the boundary lines of all private roads or private streets that 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 and (ii) the entire width between the boundary lines of every way or place used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the Commonwealth.

         The determination of whether a "way" falls within the definition of "highway" under Code § 46.2-100 turns on the proper application of the law to the particular facts of the case. Thus, our determination of whether Nathan Hale Drive is a highway "presents a mixed question of law and fact." Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002). To properly review the trial court's application of the law to the facts, "[w]e give deference to the trial court's factual findings and view the facts in the light most favorable to . . . the prevailing part[y] below." Id. Where, as here, "the essential facts are undisputed, we are presented only with a question of law regarding the circuit court's application of the law to those facts and therefore apply a de novo standard of review." Rodriguez v. Leesburg Bus. Park, LLC, 287 Va. 187, 193, 754 S.E.2d 275, 278 (2014). See also Mulford v. Walnut Hill Farm Grp., LLC, 282 Va. 98, 106, 712 S.E.2d 468, 473 (2011) ("[T]he ultimate conclusion as to whether [a] roadway [is] a public road is reviewed de novo.").

         The question of whether a particular "way" falls within the statutory definition of "highway" has been previously addressed by this Court and others. In Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957), the issue before the Court turned on whether the parking lot of a service station was a statutory highway. The Court held that the parking lot did not fall within the definition of a highway, because it was

open to the public upon [the owner's] invitation. The invitation was for private business purposes and for his benefit. [The owner] 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.

         In contrast, a highway, this Court has said,

is a way open to the general public without discrimination, distinction or restriction except to regulate in order to secure to the general public the maximum benefit therefrom and enjoyment thereof. There must be common enjoyment on the one hand and the duty of public maintenance on the other. It is the right of travel by everyone and not the exercise of the right that establishes a way a public highway.

Id. at 408, 100 S.E.2d at 9.

         In Kay Management Co. v. Creason, 220 Va. 820, 263 S.E.2d 394 (1980), the Court addressed the question of whether the privately owned and maintained streets of an apartment complex were statutory highways. It was noted that the streets in Kay Management "were paved, curbed, and bordered by sidewalks." Id. at 830, 263 S.E.2d at 400. However, nothing in the record indicated "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" or "that access was denied to the public by security guards, gates, or warning signs." Id. at 830, 263 S.E.2d at 400-01. The Court determined that, based on these facts, the streets were statutory highways. In reaching this conclusion, the Court specifically distinguished a portion of the holding in Prillaman, explaining that the statutory definition of highway contains "no requirement of public maintenance" and, therefore, "ways on private property that are open to public use for vehicular travel" could also be highways under the statute. Id. at 831-32, 263 S.E.2d at 401.

         In Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987), the Court addressed the question of whether the parking area in a condominium office complex was a statutory highway. The facts in Furman were similar to those in Kay Management in that "the complex [was] open for vehicular traffic 24 hours a day, seven days a week" and "[n]o guard or barricade system prevent[ed] the public from driving at will through the complex." Id. at 438, 362 S.E.2d at 710. The key distinction between Kay Management and Furman was the fact that, in Furman, there was a sign at each entrance to the property that stated "Private Property, No Soliciting." Id. The Court determined that, notwithstanding the presence of the signs, the parking area was a statutory highway. Id. at 441, 362 S.E.2d at 711. The Court explained that the signs were not dispositive because "the purpose of the signs [was] to prohibit soliciting, not the entry of motor vehicles operated by members of the public." Id.

         The Court of Appeals, in Flinchum v. Commonwealth, 24 Va.App. 734, 485 S.E.2d 630 (1997), considered whether the parking lots of a sporting goods store and a car repair business were sufficiently open to the public to render them statutory highways. Noting that a "No Trespassing" sign was posted on the property of the car repair business, the Court of Appeals held that the parking lots were not statutory highways because the sign demonstrated that the parking lots were only intended to be open to the public upon invitation. Id. at 736-37, 485 S.E.2d at 631. As the Court of Appeals explained, a "No Trespassing" sign "clearly serve[s] to 'prohibit . . . the ...

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