Miss Lane was arrested for DUI after failing a field sobriety test in the parking lot of a VFW post. The parking lot was surrounded by a fence and signs stating it was for members only and trespassers would be towed. Precedent establishes that to be considered a highway under Vermont's DUI statute, a road must be open to the general public. As the VFW lot was private property with measures to exclude the public, Miss Lane has a strong argument the lot was not a highway and the DUI charge should be dropped. However, the prosecution may argue the single prior incident of removing a trespasser's car and occasional private rentals make the lot open to the public.

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Sgt. Pepper & Associates
1960 Abbey Road
Liverpool, Vermont 05673
(802) 208-2082
To: Paul McCartney, Partner
From: Jacob D. Trahan, Junior Associate
Re: Lane Matter: Miss Lane was likely not operating on a “highway” as
defined by 23 V.S.A. § 4(13).
Date: October 1, 2016
I. Facts
During the morning hours of 1:25 am, on September 21, 2016, Officer Starr
of the Vermont State Police was on patrol when he noticed a Subaru driving
erratically in the parking lot of the Harrison-Lennon Veterans of Foreign Wars
(“VFW”) Post at 1 Rubber Soul Street in Montpelier, Vermont. Trooper Starr
pulled into the empty parking lot and proceeded to question the driver of the
Subaru, Penny Lane. The VFW parking lot was surrounded by a chain link fence
and was marked with three signs, which strongly indicated that the parking lot
was solely for the use of VFW members. Two signs stated, “MEMBERS ONLY:
VIOLATORS WILL BE TOWED,” while the third sign stated, “ATTACK DOG ON
PREMISES.”
While questioning Miss Lane, Trooper Starr noticed that Miss Lane had
“glassy, bloodshot eyes,” was slurring her speech, and that her breath smelt of
alcohol. Trooper Starr asked Miss Lane for her license and registration, which she
slowly retrieved. When Miss Lane was asked if she had been drinking, Miss Lane
admitted to having a “couple of margaritas around 5 pm,” but had not had a drink

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in “several hours.” Miss Lane was asked to perform a voluntary field sobriety test,
which included the “Nine Step Walk and Turn,” to which she consented. After
failing to complete the walk and turn, police administered a Blood Alcohol
Content test (“BAC”). Miss Lane blew a .08, the legal limit, and was subsequently
placed under arrest for driving under influence of intoxicating liquor in violation
of 23 V.S.A. § 1201(a)(2), Vermont’s DUI statute.
The President of the VFW Post, George Harrison, stated in a telephone
conversation that the parking lot in which Miss Lane was arrested for DUI is in
fact for members only, but can be rented out for private parties. Mr. Harrison
also said that there had been one prior incident in which a member had to call the
police to have a trespassers car removed.
II. Question Presented
Whether Miss Lane was operating a motor vehicle while under the influence of
alcohol on a “highway” as defined by 23 V.S.A. § 4(13) in violation of 23 V.S.A. §
1201 (a)(2), Vermont’s DUI statute.
III. Brief Answer
The DUI charge against Miss Lane will likely be dropped because she was not
operating a motor vehicle on a “highway” as defined by 23 V.S.A. § 4(13). By not
operating on a highway, Miss Lane was not in violation of Vermont’s DUI statute,
23 V.S.A §1201(a)(2).
IV. Discussion
The issue is whether or not at the time of her arrest Miss Lane was driving
under the influence of intoxicating liquor on a highway. One of the main elements

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in determining whether or not a motorist is operating a vehicle on a public
highway under 23 V.S.A. § 4(13), is if the roadway is “open temporarily or
permanently to public or general circulation of vehicles . . .” Vt. Stat. Ann. tit. 23 §
4(13). In State v. Eckhardt, 165 Vt. 606, 686 A.2d 104 (1996), the Vermont
Supreme Court decided whether or not a private driveway to a single residence,
with no markings or barriers restricting access was a public highway under 23
V.S.A. § 4(13).
In Eckhardt, a Vermont State Trooper observed a car speeding and followed
the vehicle into the defendant’s driveway. While questioning the defendant, the
defendant drove to the bottom of his driveway. When the defendant got out of his
vehicle, the trooper noticed signs of intoxication and arrested the defendant for
driving under the influence of intoxicating liquor. Id. at 606. The majority wrote,
“Ownership of the way is not controlling in defining what constitutes a public
highway,” Id. at 606. Instead, when determining if a driveway falls under 23 V.S.A.
§ 4(13), courts look at whether or not “gates, signs or a legal right existed to
exclude the public from driving a vehicle into the way at issue,” Id. at 607.
State v. Paquette 151 Vt. 631, 563 A.2d 682 (1989) further illustrates the
courts current definition of a highway under 23 V.S.A. § 4(13). In Paquette an
officer had observed the defendant speeding down a road and pursued the
defendant across a field and into his driveway. At the scene, the officer arrested
the defendant for DUI. The defendant appealed his conviction and argued that the
road where the officer first observed him speeding was a privately owned
driveway making it closed to the general circulation of vehicles as required by 23

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V.S.A. § 4(13) and Vermont’s DUI statute, 23 V.S.A. § 1201(a)(2). Id. at 633. “The
key is not ownership of the highway but whether it is open to the general
circulation of the public,” State v. Paquette 151 Vt. 631, 563 A.2d 634 (1989).
The Vermont Supreme Court ruled that the road in question was open to
the general circulation of the public. The lower court in their ruling had found
that because the road was maintained and plowed by the town of Colchester and
was used for secondary access to a convenience store and school, it was open to
the general circulation of the public. Id. at 634.
In State v. Jarvis, 145 Vt. 8, 462 82 A.2d 65 (1984), the Vermont Supreme
Court held that the defendant was operating a motor vehicle on a highway
pursuant to 23 V.S.A. § 4(13) and violated the State’s DUI statute under 23 V.S.A. §
1201(a)(2) when the defendant was arrested for a DUI in a restaurant parking lot
in Stowe, Vermont. The restaurant parking lot was open to the general circulation
of the public and was located on Route 108, which met the requirements of a
highway under 23 V.S.A. § 4(13) because the restaurant had a large point of
entry, and because the restaurant parking lot had the ability to accommodate
multiple cars in close proximity to a public road, or access area Id. at 13.
However, in State v. McNeil, 164 Vt. 129, 665 A.2d 51 (1995), the defendant
was charged with DUI after being arrested in a Yellow Cab parking lot. The
defendant moved to dismiss the charges, arguing that the Yellow Cab parking lot
was not a highway within the meaning of 23 V.S.A. § 4(13) and therefore he did
not violate the State’s DUI statute 23 V.S.A. § 1201(a)(2). Id. at 131. Upon the
appellant’s appeal, the Vermont Supreme Court held in favor of the appellant

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because there were “no trespassing” signs on the fences and the company treated
the lot as, “private property for business invitees,” who were specifically invited
on the premise Id. at 131. Also, when there were no vehicles associated with the
Yellow Cab Company in their parking lot, the company would call the police to
escort the trespassers off the premises. Id. at 131. “In fact, it is used primarily by
employees. When vehicles not on cab company business are observed in the lot,
the police are called . . .” State v. McNeil, 164 Vt. 129, 665 A.2d 131 (1995).
Because the Yellow Cab parking lot in McNeil was used by employees to
leave their cars, was reserved for business invitees specifically invited to enter,
and was marked with “no trespassing” signs, enforced by the police who removed
trespassers from the premises, the Vermont Supreme Court held the defendant
was not operating a motor vehicle while under the influence on a highway as
defined 23 V.S.A. § 4(13) and therefore was not in violation of 23 V.S.A. §
1201(a)(2). Id. at 133.
Similar to the fact pattern in McNeil, the VFW parking lot where Trooper
Starr apprehended Miss Lane was surrounded by a chain link fence with an
opening large enough for one car to pass through. Also, the VFW parking lot was
clearly marked with tree signs. Two signs stated, “MEMBERS ONLY: VIOLATORS
WILL BE TOWED.” While the third sign stated, “ATTACK DOG ON PREMISES.”
Along with the chain link fence and the signs, George Harrison, the
President of the VFW Post, confirmed that the use of the VFW parking lot is
reserved for members only. Mr. Harrison also noted that on one prior occasion

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VFW members had to call the police to request the removal of an unauthorized
vehicle.
When comparing the facts of our case with precedent established by prior
cases in which the defendants were found to be operating a motor vehicle on a
highway, Miss Lane will likely not be charged with a DUI under 23 V.S.A. §
1201(a)(2). Miss Lane was likely not operating a motor vehicle on a highway as
defined by 23 V.S.A. § 4(13). Eckhardt, Paquette, and Jarvis all clearly define a
highway under 23 V.S.A. § 4(13) as being a roadway “open temporarily or
permanently to public or general circulation of vehicles . . .” Vt. Stat. Ann. tit. 23 §
4(13).
V. Counter Arguments
While our side likely has a compelling argument for why Miss Lane should
not be charged for operating a motor vehicle while under the influence of alcohol
on a highway as defined by 23 V.S.A. § 4(13), there are three factors we must
consider. First, because the VFW Post had only one prior incident in which they
had to call the police to remove a trespasser, the signs on the premise may not
adequately deter the general public. Second, because the building is occasionally
rented out for private functions, the court may view the VFW parking lot as open
to the general circulation of traffic. Finally, under the Vermont Supreme Court’s
ruling in Eckhardt, the court could rule that Trooper Starr’s decision to stop,
question, and arrest Miss Lane was in the interest of public safety.

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VI. Conclusion
The DUI charge against Miss Lane likely will be dropped because she was
not operating a motor vehicle on a highway as defined by 23 V.S.A § 4(13). At the
time of her arrest she had been driving her Subaru in a members only VFW
parking lot. A chain link fence surrounded the parking lot, and three marked
signs were located on the premise. The three signs indicted that the parking lot
was exclusive to members only and that there was an attack dog on the premise.
The signs along with the fence would be enough to lead a reasonable person to
believe that the parking lot was not open to the general circulation of vehicles or
public. Therefore, our client, Miss Lane was likely not operating a motor vehicle
on a highway as defined by 23 V.S.A § 4(13).