Virginia DUI: Of Mopeds and Public Highways in Virginia

We will keep this one short.  Can a naval station that provides limited access to the public have “public highways” for the purposes of Va. Code § 18.2-266 (i.e., Virginia’s DUI statute) or its analogue under the Federal Code?   Yes, it can.

In United States v. Perez, Criminal No. 2:13-mj-00316 (E.D. Va. 2013), the defendant was caught driving his moped under the influence of alcohol on various roads throughout Norfolk Naval Station.  He argued that he could not be convicted of DUI because he had not driven his moped on a “public highway.”[1]  The United States District Court for the Eastern District (Norfolk Division) held that he indeed had traveled on a “public highway.”  He was accordingly convicted of DUI.

The court basically held that while this might have been a tougher decision in the past, it was rather easy given somewhat recent amendments to the statute defining “highway’ under Va. Code 46.2-100.  That code section was expanded from “every way or place open to the use of the public for purposes of vehicular travel in the Commonwealth” to include “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 court held that this latter expansion to include federal property necessarily included private federal property because otherwise this addition added nothing to this code section that was not already included in “open to the use of the public.”  That Va. Code § 18.2-266 speaks to use of a moped on a public highway is of no consequence because, inter alia, “public” must be understood to apply to the contextualized community at issue, which in this case would be those folks who have access to this base and its roads (e.g., Servicemembers or contractors/employees).  As such, the defendant was driving a moped under the influence on a public highway even though he was only using limited access roads found on Norfolk Naval Station.

[1] Note that the “public highways” limitation is only applicable to mopeds under the DUI statute.