No. COA94-771 | N.C. Ct. App. | Dec 20, 1994
It is a misdemeanor to drive a vehicle upon “any highway, any street, or any public vehicular area within this State” while under the influence of an impairing substance, or, prior to 1 October 1993, at any relevant time after driving with an alcohol concentration of 0.10 (now 0.08). N.C. Gen. Stat. § 20-138.1(a) and (d) (1993). Defendant contends that he should have never been arrested or convicted of the offense because he never drove on a highway, street or public vehicular area, as the mobile home park is private property, and Ann Elizabeth Drive has never been dedicated to public use.
Any area within the State of North Carolina that is generally open to and used by the public for vehicular traffic, including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley, or parking lot... .
The term ‘public vehicular area’ shall also include . . . any road opened to vehicular traffic within or leading to a subdivision for use by subdivision residents, their guests, and members of the public, whether or not the subdivision roads have been offered for dedication to the public. The term ‘public vehicular area’ shall not be construed to mean any private property not generally open to and used by the public.
Black’s Law Dictionary 1277 (5th ed. 1979) defines a “subdivision” as:
Division into smaller parts of the same thing or subject-matter. The division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development.
The evidence shows that Timberline Mobile Home Park is owned by one individual, who has divided the property into lots for lease. The mobile home park thus fits within the foregoing definition of a subdivision. The evidence further shows that the streets are not marked by signs indicating the roads are private or by signs prohibiting trespassing, and that the streets are available for use by residents and their guests or other visitors. We therefore conclude that a jury could find that Ann Elizabeth Drive is a public vehicular area within the meaning of G.S. § 20-4.01(32).
We hold the trial court correctly denied defendant’s motion to dismiss the charge.
No error.