Virginia Beach, VA– Is a private parking lot the same as a highway in DUI cases? That’s the central question of a recent case before the Virginia Supreme Court which decided for the defendant who was charged with violating the state’s implied consent laws.

Matthew Alexander Kim vs. Commonwealth of Virginia

In May of 2015, Matthew Alexander Kim was sleeping in his running car that was haphazardly parked in a lot belonging to an apartment complex. An officer approached Kim and asked him to exit his vehicle. Throughout his interactions with the officer, Kim was belligerent and refused a breathalyzer.

When he appeared before the trial court, he argued that he shouldn’t have been charged with violating the state’s implied consent law (Virginia Code Code § 18.2-268.3(B)) because he was parked in a private lot. Kim asserted that the parking lot did not meet the law’s definition of a highway. He noted that throughout the parking lot were “No Trespassing” signs, so the lot could not be considered a highway since it is not open to the public.

The Commonwealth of Virginia disagreed with Kim’s argument, and the trial court denied his motion to have the charges dismissed. Kim appealed, and his case eventually landed in the state’s high court which was decided on April 17, 2017.

In their decision, the Virginia Supreme Court agreed with Kim’s argument, determining that a private parking lot is not considered a highway and overturned Kim’s conviction.

In the opinion, Justice Cleo E. Powell, writing for the majority said, “We conclude that the presence of ‘No Trespassing’ signs at every vehicular entry point to the apartment complex necessarily restricts the public’s access to the apartment complex as a whole.” The high court said that despite having street names, sidewalks and traffic signs, the parking lot is not considered a highway because it is not open to free public use.

Should I Fight an Implied Consent Charge in Virginia?

If you are facing an implied consent charge, you may not think you should fight the charge. The penalties are not as serious as a DUI and won’t result in a jail sentence, but you will lose your driver’s license and face costly fines. A first refusal conviction is not considered a crime, but second and third offenses are misdemeanors and will appear on your criminal record.

Losing your driver’s license can result in unemployment if you drive for work or live where public transportation is unavailable. It is worth the time and effort to fight an implied consent charge. If you want to discuss your charge and the ways you can fight it, call a DUI lawyer in Virginia Beach and set up a case evaluation. can forward your case to a knowledgeable and assertive attorney to work on your defense. Call and set up a consultation today.

Speak with a DUI lawyer in Virginia Beach if you are facing a refusal charge.