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COURT OF APPEALS OF VIRGINIA
Present:    Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
JOHN J. BAHEN, JR.
OPINION BY
v.    Record No.  0500-98-2                                             JUDGE JAMES W. BENTON, JR.
JULY  6,  1999
COUNTY OF HENRICO
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
John J. Bahen, Jr., pro se.
(Roger W. Frydrychowski, Assistant
Commonwealth's Attorney, on brief), for
appellee.
A police officer issued a summons to John J. Bahen, Jr., for
driving thirty-five miles per hour in a zone with a posted speed
limit of twenty-five miles per hour.    The summons cited Code
§  46.2-874 and Henrico Code  §  22-2.    On appeal from a conviction
for speeding, Bahen contends the trial judge erred in ruling that
the street on which he was driving was in a "residence district."
We affirm the conviction.
I.
The facts concerning the event that gave rise to the issuance
of the summons are undisputed.    Bahen was driving south on Charles
Street where the speed limit was posted as twenty-five miles per
hour.    When he was between Park Avenue and West Franklin Street, a
radar device operated by a Henrico County police officer




registered the speed of Bahen's vehicle at thirty-five miles per
hour.    At trial, Bahen conceded he was driving in excess of the
posted speed limit.    Instead, relying on Brooks v. Painter,  225
Va.  400,  302 S.E.2d  66  (1983), and Thoms v. Dowdy,  201 Va.  581,
112 S.E.2d  868  (1960), Bahen argued that the portion of Charles
Street on which he was driving in excess of the twenty-five miles
per hour posted speed limit was not a "residence district," see
Code  §  46.2-100, and, therefore, that the speed limit was
improperly posted as twenty-five miles per hour.
After the police officer testified concerning the events that
caused him to issue the summons, Bahen sought to prove through
cross-examination of the officer and testimony of various County
traffic engineers that the character of the land contiguous to
Charles Street did not meet the definition of "residence
district."    At the conclusion of the evidence, the trial judge
ruled that the contiguous land "meets the definition of the
residence area, and is so properly speed limited at  [twenty-five]
miles per hour."    The trial judge also found that Bahen had
conceded the accuracy of the radar and ruled that Bahen was
driving at thirty-five miles per hour in violation of the posted
limit.
II.
Generally, "[t]he maximum speed limit on  .  .  . highways shall
be fifty-five miles per hour if the vehicle is a passenger motor
vehicle."    Code  §  46.2-870.    That general rule is subject to many




statutory exceptions.    See e.g. Code  §§  46.2-870 through  46.2-883.
For example, "[n]otwithstanding the other  [statutory] provisions
[governing speed], the Commonwealth Transportation Commissioner or
other authority having jurisdiction over highways may decrease the
speed limits set forth in  [Code]  §  46.2-870 and may increase or
decrease the speed limits set forth in  [Code]  §§  46.2-873 through
46.2-875 on any highway under its jurisdiction."    Code  §  46.2-878.
Any speed limit that is increased or decreased pursuant to Code
§  46.2-878 "shall be effective only when prescribed after a
traffic engineering investigation," which is filed as prescribed
in the statute, "and when indicated on the highway by signs."    Id.
The statute further provides that "[w]henever the speed limit on
any highway has been increased or decreased  .  .  . and such speed
limit is properly posted, there shall be a rebuttable presumption
that the change in speed was properly established."    Id.1
1 The full text of Code  §  46.2-878 is as follows:
Notwithstanding the other provisions of this
article, the Commonwealth Transportation
Commissioner or other authority having
jurisdiction over highways may decrease the
speed limits set forth in  [Code]  §  46.2-870
and may increase or decrease the speed
limits set forth in  [Code]  §§  46.2-873
through  46.2-875 on any highway under its
jurisdiction; and may establish
differentiated speed limits for daytime and
nighttime by decreasing for nighttime
driving the speed limits set forth in  [Code]
§  46.2-870 and by increasing for daytime or
decreasing for nighttime the speed limits
set forth in  [Code]  §§  46.2-873 through
46.2-875 on any highway under his  [or her]




In addition, the legislature has empowered "[t]he governing
bodies of counties, cities, and towns  [to] adopt ordinances not in
conflict with the  [Motor Vehicle Code] to regulate the operation
of vehicles on the highways in such counties, cities, and towns
.  .  . and may erect appropriate signs  .  .  . on the highway showing
the general regulations applicable to the operation of vehicles on
such highways."    Code  §  46.2-1300(A).2    See also Nelson v. County
jurisdiction.    Such increased or decreased
speed limits and such differentiated speed
limits for daytime and nighttime driving
shall be effective only when prescribed
after a traffic engineering investigation
and when indicated on the highway by signs.
It shall be unlawful to operate any motor
vehicle in excess of speed limits
established and posted as provided in this
section.    The increased or decreased speed
limits over highways under the control of
the Commonwealth Transportation Commissioner
shall be effective only when prescribed in
writing by the Transportation Commissioner
and kept on file in the Central Office of
the Department of Transportation.    Whenever
the speed limit on any highway has been
increased or decreased or a differential
speed limit has been established and such
speed limit is properly posted, there shall
be a rebuttable presumption that the change
in speed was properly established in
accordance with the provisions of this
section.
2
The full text of Code  §  46.2-1300 is as follows:
A.    The governing bodies of counties,
cities, and towns may adopt ordinances not
in conflict with the provisions of this
title to regulate the operation of vehicles
on the highways in such counties, cities,
and towns.    They may also repeal, amend, or
modify such ordinances and may erect




appropriate signs or markers on the highway
showing the general regulations applicable
to the operation of vehicles on such
highways.    The governing body of any county,
city, or town may by ordinance, or may by
ordinance authorize its chief administrative
officer to:
1. Increase or decrease the speed limit
within its boundaries, provided such
increase or decrease in speed shall be based
upon an engineering and traffic
investigation by such county, city or town
and provided such speed area or zone is
clearly indicated by markers or signs;
2. Authorize the city or town manager or
such officer thereof as it may designate, to
reduce for a temporary period not to exceed
sixty days, without such engineering and
traffic investigation, the speed limit on
any portion of any highway of the city or
town on which work is being done or where
the highway is under construction or repair;
3. Require vehicles to come to a full
stop or yield the right-of-way at a street
intersection if one or more of the
intersecting streets has been designated as
a part of the state highway system in a town
which has a population of less than  3,500.
B.    No such ordinance shall be violated if
at the time of the alleged violation the
sign or marker placed in conformity with
this section is missing, substantially
defaced, or obscured so that an ordinary
observant person under the same
circumstances would not be aware of the
existence of the ordinance.
C.    No governing body of a county, city, or
town may provide penalties for violating a
provision of an ordinance adopted pursuant
to this section which is greater than the
penalty imposed for a similar offense under
the provisions of this title.
-                                                5  -




of Henrico,  10 Va. App.  558,  393 S.E.2d  644  (1990)  (decided under
Code  §  46.1-180, the precursor to Code  §  46.2-1300).    This statute
specifically authorizes the governing body or, when properly
delegated, the chief administrative officer to "[i]ncrease or
decrease the speed limit within its boundaries, provided such
increase or decrease in speed shall be based upon an engineering
and traffic investigation  .  .  . and provided such speed area  .  .  .
is clearly indicated by  .  .  . signs."    Code  §  46.2-1300(A)(1).
III.
At trial and on this appeal, Bahen argued that the evidence
proved he was driving on a highway that was not in a "residence
district" as specified in Code  §  46.2-874 and defined in Code
§  46.2-100.    The record establishes that a substantial portion of
the proof at trial concerned that issue and the application of the
Brooks and Thoms decisions to the facts of this case.    Indeed, at
one point during the taking of the evidence the trial judge
indicated that "[we are] down to the very narrow issue of whether
it's a residence district or not."
We conclude, however, that we need not determine whether the
County's interpretation of "residence district," which was
D.    No county whose roads are under the
jurisdiction of the Department of
Transportation shall designate, in terms of
distance from a school, the placement of
flashing warning lights unless the authority
to do so has been expressly delegated to
such county by the Department of
Transportation, in its discretion.




accepted by the trial judge, comports with the Supreme Court's
holding in Brooks concerning the proper way to view "land improved
for dwelling purposes" as that term is used in the Code  §  46.2-100
definition of "residence district."    See Brooks,  225 Va. at  404,
303 S.E.2d at  68-69.3    The Commonwealth prosecuted Bahen for
violating the posted speed limit.    Bahen raised as his defense the
theory that the Commonwealth could not prevail absent proof that
he was in a "residence district."    Although much of the evidence
concerned the character of Charles Street and the definition of
"residence district," the following colloquy occurred during the
presentation of evidence:
MR. BAHEN:    I'm trying to establish that I
was driving at a safe speed.
THE COURT:    Well, but again, you were not
charged with driving unsafe.    You're just
charged with driving above the speed limit.
So I really don't think that's relevant,
unless you can tell me some reason that it
would be, I'd be glad to hear it.
I mean, you're not charged with reckless
driving, and you're not charged  -- you're
just charged with a prohibited crime of
driving above the posted speed limit, and
that's it.
MR. BAHEN:    Your Honor, I would offer that
I'm not charged with driving above the
posted speed limit, I'm charged with
3 Although both Brooks and Thoms were negligence cases,
clearly the interpretation of "residence district" found in
those cases would be valid and applicable in a traffic violation
prosecution.    We note, however, that in both of those cases, no
speed limit was posted.    See Brooks,  225 Va. at  402,  302 S.E.2d
at  67; Thoms,  201 Va. at  582-83,  112 S.E.2d at  869-70.




speeding in a residential district, Section
874 of the Code of Virginia.
THE COURT:    Yeah.
MR. BAHEN:    Forty-six  --
THE COURT:    Speed  35 miles per hour in a  25
mile per hour zone is what the summons says.
MR. BAHEN:    The law section of the summons
says  874, and  874 has  -- there's nothing,
nothing in  874 about the posted speed limit,
Your Honor.
THE COURT:    The code section is merely
advisory.    The crime you're charged with is
what is stated in the charge and that's
speeding  35 miles per hour in a  25 mile per
hour zone.    They could put no code section
or the wrong code section and that is not
controlling.    What is controlling is the
stated word that gives you notice of what
your charge is.    So that's what I take it
you're being charged with.    All right?    So
is there any reason that it's relevant as to
whether you were driving safely or unsafely?
MR. BAHEN:    No further questions.
THE COURT:    Thank you.
MR. BAHEN:    But I would like to further
discuss the  -- according to Your Honor that
Commonwealth had every opportunity to amend
the warrant if they thought they had a code
section that I had violated  .  .  .
The undisputed evidence at trial proved that the speed limit
for the portion of the highway on which Bahen was driving was
posted by a sign to be twenty-five miles per hour.    Bahen
concedes that he was exceeding the posted speed limit.    The Motor
Vehicle laws explicitly state that "[a]ll drivers of vehicles
shall obey lawfully erected signs."    Code  §  46.2-830.
Furthermore, "[i]t shall be unlawful to operate any motor vehicle




in excess of speed limits established and posted as provided  [by
the Commissioner or other authority having jurisdiction over
highways]."    Code  §  46.2-878.    In applying these proscriptions in
cases where "the speed limit on any highway has been increased or
decreased  .  .  . and such speed limit is properly posted, there
shall be a rebuttable presumption that the change in speed was
properly established in accordance with the provisions of this
section."    Code  §  46.2-878.
The testimony of the traffic engineer for the County
established that the records of the traffic engineering division
"go back to  1976 and  .  .  . do not show that there has been a
change of speed limit since  1976."    He further testified that if
the posted speed limit was not the original speed limit, he had
no records to show a change.    No evidence in the record proved
whether the speed limit sign was initially posted by the County
or the Commissioner.    Accordingly, we hold that the evidence in
the record failed to rebut the presumption that the speed limit
was properly established.    Thus, we affirm the trial judge's
ruling that Bahen was driving in excess of the posted speed
limit.
Affirmed.

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