Kim v. Commonwealth, 797 S.E.2d 766

Matthew Kim was found asleep in a running car in a parking space inside the privately owned Avant Apartments complex; officer observed signs of intoxication and arrested him for DUI.
Police asked Kim to submit to a breath test at the station; he refused and was charged under Va. Code § 18.2-268.3 (unreasonable refusal under the implied‑consent statute, which applies when a person is arrested for operating a vehicle "upon a highway" as defined in § 46.2-100).
The apartment complex roads (including Nathan Hale Drive) are privately maintained, named, paved, curbed, have sidewalks and traffic signs, connect to public roads, and lack gates or security guards.
"No Trespassing"/"Private Property" and "Parking by Permit Only / Trespassing Vehicles Subject to Towing" signs were posted at entrances and within the complex; one exhibit showed sign placement facing motorists and a private‑property sign angled toward pedestrians.
Trial court found Nathan Hale Drive was a highway (private road open to public use) and denied motions to strike; court emphasized absence of evidence that owners ever closed roads or prosecuted motorists for trespassing.
Supreme Court majority reversed: held the posted "No Trespassing" signs at every vehicular entry restricted public access to the complex (including its roads), so Nathan Hale Drive was not a "highway" under § 46.2-100 and the implied‑consent statute did not apply; dissent would have affirmed.

Issue	Plaintiff's Argument (Kim)	Defendant's Argument (Commonwealth)	Held
Whether Nathan Hale Drive is a "highway" under Va. Code § 46.2-100	Signs and private maintenance show roads are private and not "open to the use of the public" so implied consent does not apply	Roadways are named, paved, connect to public roads, lack gates—public has unrestricted access; presumption of highway status arises	Held: Not a highway; conspicuously posted "No Trespassing" signs at all vehicular entrances rebut presumption of public access
Legal effect of "No Trespassing" / "Private Property" signs on public‑access inquiry	Signs demonstrate restricted access and prohibit entry to the complex (including vehicular travel)	Signs may target soliciting or parking only; lack evidence they were directed at motorists or enforced	Held: "No Trespassing" signs, reasonably posted at every entrance, prohibit unauthorized entry generally and are sufficient to rebut presumption of unrestricted public use
Relevance of arrest location (parking space) to refusal charge	Kim argued he was in a private parking spot, not on a highway, when arrested	Commonwealth: locus of arrest differs from locus of alleged DUI; probable cause for DUI arrest existed and statute cares that the alleged driving occurred on a highway	Held: Court noted arrest location need not equal location of offense; but because Nathan Hale Drive is not a highway, implied‑consent statute did not apply and refusal charge cannot stand

Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957) (parking lot open by invitation for owner’s business not a statutory highway)
Kay Mgmt. Co. v. Creason, 220 Va. 820, 263 S.E.2d 394 (1980) (private streets can be highways if open to public use; lack of gates/signs indicative)
Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987) ("Private Property, No Soliciting" signs do not necessarily prohibit vehicular entry; context matters)
Caplan v. Bogard, 264 Va. 219, 563 S.E.2d 719 (2002) (absence of physical barriers alone insufficient to prove public access; party must show unrestricted access to trigger presumption)
Flinchum v. Commonwealth, 24 Va. App. 734, 485 S.E.2d 630 (1997) ("No Trespassing" sign demonstrates access is by invitation and negates highway status)
Roberts v. Commonwealth, 28 Va. App. 401, 504 S.E.2d 890 (1998) (owner’s ability to exclude and prior trespass enforcement can rebut highway presumption)
United States v. Smith, 395 F.3d 516 (4th Cir. 2005) (access road with signs barring public entry is not a highway under Virginia law)
Robinson v. Commonwealth, 273 Va. 26, 639 S.E.2d 217 (2007) (implied consent to access can be negated by indicia of restricted access such as posted "No Trespassing" signs)