It's a "legal fiction" derived from common law rules about the King's highways. The reason it's a bit tenuous is that in Jolly Olde England, the King's highways were actually the King's property - as was all of England's real estate, as "landowners" only held their fiefs by leave of the King who was, in effect, the landlord of the whole country. A good wikipedia article on the subject under the heading, "quia emptores", after the statute which began in those words. But there was a change in the mid-1600's by which land tenure was essentially taken away from the king in exchange for an allowance of sorts. In Virginia, the rule was clearly that the landowner owns his own land, and that highways were created out of rights-of-way across the lands of some individual owner. In custom, abutting landowners whose boundary was a road owned to the center line of the highway. So the Sovereign was not the sovereign of the highways in Virginia. Nevertheless, the courts said that the privilege to operate some particular mode of transport on The Sovereign's Highways could be subject to terms and conditions. Everyone's got the absolute right to travel on the Sovereign's highways, as at common law, but if you use a motor vehicle to do it, your use of the vehicle can be subject to regulation. The assumption of county roads into the State Highway System under Byrd Road Act (1932) reinforced that kind of thinking. So the rule that by your use of a motor vehicle on the highway implied your acceptance of terms and conditions, among which is your agreement to submit to a test to determine your blood alcohol level. I don't know when the current statute was passed originally, but the failure to submit to the test is a separate offense. And here we're talking only about the one that's given at the jail after an arrest, not an "alkasensor" by the side of the road which is entirely optional.
By the way - DUI is a crime whether you're on the public highways or not - but you can't be required to take the breath test if you're not operating a motor vehicle on a highway. Some private roads are made highways for law enforcement purposes by local ordinance, but that's only in residential subdivisions. I knew of a recent case in which a woman had attended a private event at one of these country "inns" of which Virginia seems to have no lack, and was stopped and charged before she'd actually reached the highway - still on a private driveway. She'd refused the blood test, so they had no real evidence of DUI so they charged her with the refusal - she won because implied consent did not extend to private land.
And, we can point to exactly which king did that: William the Conqueror. He claimed every scrap of dirt in England as his personal property.
Now, just for a bit of back round.
If one concedes there can be such a thing as a good king, Edward the Confessor qualifies. The problem was he never married, and had no children. In roughly 1060 AD, Edward started looking toward the succession--who would succeed him when he died.
Roll back the clock some years more. During Edward's reign, Godwin, Earl of Wessex was the most powerful noble in England. And, Godwin gave Edward no end of headaches. Eventually, Godwin died, and his son, Harold Godwinson, became Earl of Wessex. I vaguely recall that Edward and Godwin sort of reconciled or came to terms; so, by the time Harold Godwinson inherited the title of Earl, there was little or no friction between the son and Edward the king.
Roll the clock forward again. Edward sees the end coming. William, Duke of Normandy (France) has some minor legitimate claim to the throne of England. So, Edward promises William the crown upon his passing. I think this part is actually documented.
In roughly 1064 AD, Harold Godwinson goes to France to negotiate or rescue a hostage/prisoner. While there, he is captured and ends up the guest (privileged prisoner) of William for a while. Now, remember, Harold is Earl of Wessex, a very powerful nobleman in England. If Harold would recognize William's succession to the throne of England, that would carry a good bit of weight. So, of course, William obtained Harold's promise to recognize William as the king of England when Edward passes away.
Here's where it gets a bit fuzzy. Edward dies in late 1065 or early 1066. But, according to Harold, Edward bestowed the crown on him just before he died. Uh-oh. You don't even have to know the rest of the story to see trouble coming.
Harold Godwinson assumed the throne. William found out and said, "Oh, heck no! That's mine!!" William spent the next several months preparing an invasion--assembling an army, building a transport fleet. And, invaded.
The battle was on a ridge about nine miles north-northwest of the coastal town of Hastings. Its called the Battle of Hastings, but you'll find it actually took place at a village today aptly named, Battle.* Harold died during the battle. As did much of the nobility of England. That's why William was able to insert his own people--there were dang few English noblemen left for him to have to cooperate with.**
Now, historians today are still unsure whether Edward the Confessor changed his mind and gave the crown to Harold without telling William, or whether Harold was just ambitious and made it up.
But, regardless of that question, it makes no sense at all that Edward--a recognized good king--told William that ownership of every scrap of land in England accompanied the crown. Edward did not claim that for himself. He certainly would not have transferred it to William.
Thus, the legal fiction that the roads of Virginia belong to the sovereign rests on the simple, bald-faced, self-serving assertion of a man history proves was vicious and brutal.***
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*There has been a bit of a break-through on the actual location of the battle relatively recently. You see, the traditional battlefield is a very curious battlefield. In the 900 years since the battle, not once has a military artifact been discovered on the battlefield. Not an axe, not a belt buckle, not an arrowhead. Nothing. So an archeological group decided to dig into the question. They did several things. They re-surveyed the traditional battlefield (metal detectors, trenches, etc.) and found nothing. They eliminated a nearby hill (Caldbec Hill) for tactical reasons--the hill is too broad for Harold's shield wall to defend; William's cavalry could just ride around them and attack the flanks and rear. But, there is one little place just to the south-east of the traditional battlefield that would have made the ideal defensible ground. You see, in 1066, sea levels were higher. The land around Hastings was marshy. There was only one road out of Hastings, leading inward along high ground and ridgelines. That road is still there today, albeit paved and more populated along its route. And, as that road makes its final approach the village of Battle, it ascends along a ridge. And, at the northern end of the village, there is a saddle where the ground drops away steeply on the left and right. A British infantry commander was asked to assess the lay of the ground. Even he said that exact place was the crucial point, and exactly where he would set up his own troops. You can see it for yourself. Just use google-maps, key words "Battle" and "England". Bang at the northwest end of town there is a small traffic circle. Go to street view and look at how steep the ground is. Just to the northwest is the ruins of Battle Abbey, the church built at William's command to commemorate his victory. The traditional battlefield is the south slope of grass behind the ruins. You can't miss it.
**From time-to-time, User has educated us that the first 250 years of Virginia common law is in
French. Now you know why--because William the Conqueror from France installed his own people to run England. Remember the movie Braveheart? Remember the king? That was Edward I (not to be confused with Edward the Confessor). Edward I, about 1300 AD, was the first king to habitually speak English. All the rest before him and back to William the Conqueror in 1066 spoke French. There is an excellent documentary on the English language on YouTube. It spends a little time explaining how the entire government system, the courts, and official documents from this period are all in French.
***Do a little on-line research into how William dealt with uprisings protesting his tyranny. Also, do a little research into how the Normans (William's successors and their lackeys) treated the Anglo-Saxon common people.
Bonus Tidbit: Near as I can tell, the people of England have not ruled themselves since the day before the Roman Emperor Claudius invaded England in 43 AD. The Romans ruled the poor Celts of England until, roughly, 450 AD. It was the Romans who set up the Anglo-Saxons to take over. In fact, one documentary I viewed, showed how the last of the Romans used an Anglo-Saxon chief for security, putting him in a position of power. So, the Anglo-Saxons held sway over the poor Celts until the Viking incursions starting about 800 AD. Then the Vikings, after some back and forth, got plenty of control when a Viking king named Swain took over much of the country. His son, king Canute, cleaned up and controlled most of England. King Harold Godwinson's mother was a sister or sister-in-law of Canute. That brings us to 1066 when Godwinson is killed at the Battle of Hastings. Then the Normans take over.
But, here is the tidbit. This from a documentary. The Normans were actually descended--and not all that far back--from Vikings. Vikings invaded part of France. Norman--Northmen--Norseman. Get it?
So, the danged Vikings and their descendants ruled England one way or another from roughly 1000 AD until the death of King John in 1216-17. They either ruled directly, or through their Norman descendants for almost two centuries. Poor Celts. They must have gotten pretty tired of being ruled by others. For dang near 2000 years. Even today, the monarch of England is of Germanic descent. Poor Celts. Damned Romans.
