Virginia DUI Law: The Private Parking Lot Loophole in Action

In Villareal v. Commonwealth, No. 0764-13-2 (2013), an off-duty police officer was hired to perform security outside of a restaurant that was part of an outdoor strip mall.  He unfortunately got to witness firsthand an intoxicated woman back her car right into his parked car in the mall’s parking lot.  He promptly arrested her and she was thereafter charged with driving under the influence (4th offense) and driving on a license suspended due to multiple prior convictions for driving under the influence.

The criminal defendant moved the trial court to dismiss her charge of driving on a suspended license under Va. Code § 46.2-391 on the ground that she was not seen driving on a “highway.”  The trial court overruled her motion and convicted her of driving on a suspended license.  She accordingly appealed.

Va. Code § 46.2-391(D)(3) makes it a felony to drive on a license suspended due to multiple convictions for driving under the influence.  Va. Code § 46.2-391, however, does not define any limitation on where this driving must occur to be punishable.  On its face, such driving could presumably occur anywhere, including in the secluded backwoods of one’s own private property.

Given the breadth of application, the defendant accordingly argued that such driving must be limited to “highways,” which as the defendant pointed out is already an express limitation contained in Virginia’s implied consent law under Va. Code § 18.2-268.2[1] and is a limitation that had already once been judicially read into a similar former code section dealing with license suspensions, revocations and reinstatements. See Prillaman v. Commonwealth, 1991 Va. 401 (1957).

The Virginia Court of Appeals agreed that that Va. 46.2-391(D) is limited in scope to highways and that this outdoor strip mall’s parking lot was not a highway.[2]  It accordingly reversed the defendant’s conviction under Va. Code § 46.2-391(D)(3).

So what’s the lesson from this case?  If you are charged with some offense related to DUI, you need to consider whether anyone saw your drive on a highway in the first place.  If they did not, you might be able to wiggle your way out of conviction.

[1] Virginia Code § 18.268.2(A) states: “Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the 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, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense” (emphasis added).

[2] Virginia courts have held that “the 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 (1987).  This particular strip mall parking lot was littered with “no loitering,” “no alcohol,” and “no trespassing” signs.  And this particular driver only drove from a marked parking space into the back of another parked car.  So it wasn’t too difficult for the court in this case to find that her driving only occurred on a “private road or driveway.”