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State v. Robinette10/15/1996
WALKER, Judge.
Speedy Car Wash is a business establishment in Elkin, North Carolina, open year round, twenty four hours a day. At the request of the owner of the car wash, the Town of Elkin (Town) passed an ordinance making it a misdemeanor for persons to park on the premises of Speedy Car Wash unless using the car wash facilities. On the evening of 9 January 1994, Officer Jacob Armstrong of the Town's Police Department noticed several cars parked in the Speedy Car Wash parking lot. Officer Armstrong motioned for the cars to leave the lot because none of them were using the car wash vacuum hoses or wash bays. Officer Armstrong then continued on his routine patrol. When he later returned to the car wash, the defendant was still parked in the car wash parking lot. Upon seeing Officer Armstrong pull into the parking lot, the defendant began to move his car. At this time, Officer Armstrong turned on his blue lights and the defendant stopped his car, but never left the car wash parking lot.
Officer Armstrong approached the defendant's car and noticed a strong odor of alcohol coming from the car, as well as several partially consumed cans of beer in the car, including one can located between the passenger seat and the driver's door. He also observed passengers in the car. Officer Armstrong arrested the defendant and charged him with driving while impaired after the defendant performed poorly on a sobriety test. The defendant later submitted to a chemical analysis of his breath, which measured his blood alcohol content at .10.
At trial, the defendant's motion to dismiss was denied. He then asked for a special jury instruction on the definition of "public vehicular area." The court refused to give the requested instruction and the defendant was found guilty by the jury. The defendant contends that the trial court erred in not giving his requested instruction regarding the definition of "public vehicular area."
The issue in this case is whether the Town, by adopting an ordinance prohibiting loitering on the Speedy Car Wash premises, changed the Speedy Car Wash parking lot from a "public vehicular area" to "private property." If the parking lot is considered private property, the defendant cannot be convicted of driving while impaired, because a key element of the offense of driving while impaired is that the offense take place on a highway, street, or "public vehicular area." N.C. Gen. Stat. § 20-138.1(a)(1993).
The defendant requested that the court give the jury the following instruction based on the fact that the Town had adopted the ordinance prohibiting loitering on the Speedy Car Wash premises:
"Public Vehicular Area" is defined by North Carolina General Statute § 20-4.01(32) "any area within the state of North Carolina that is generally open to and used by the public for vehicular traffic." Public Vehicular Area shall not be construed to mean any private property not generally open to and used by the public. The court instructs you, if an area is private, or signs prohibit trespassing, loitering, or lack of use for the general public, then this would not be a public vehicular area.
However, instead of giving the jury the defendant's requested instruction on "public vehicular area," the trial court submitted the complete statutory definition, including the portion which provides that a "public vehicular area" is "any area within the State . . . generally open to and used by the public for vehicular traffic, including . . . any drive, driveway . . . or parking lot upon the grounds and premises of . . . any business . . . providing parking spaces for customers, patrons, or the public." N.C. Gen. Stat. § 20-4.01 (32)(b)(1993).<
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