Ulysses L. Thomas was convicted of driving after having been declared an habitual offender Code SEC. 46.2-357 and of refusal to permit blood or breath samples to be taken for alcohol tests Code SEC. 18.2-268.3. He contends that the convictions should be reversed because the evidence of his guilt was obtained as a result of an unlawful stop. We agree as to the conviction for violating Code SEC.46.2-357 and reverse that conviction. However we lack jurisdiction over the refusal conviction.

Prior to trial Thomas filed a motion to suppress the evidence. The motion alleged that the evidence of Thomas' guilt was obtained unlawfully during a detention without a warrant and in violation of the Fourth Amendment. The trial Court deferred ruling on the motion until after evidence was presented at trial.

The evidence at trial proved that on the night of November 19 1994 police officers of the Henrico County Police Department established a roadblock where the exit ramp of Interstate 64 joins Nine Mile Road. Four or five police vehicles were stationed at the roadblock with their lights flashing. Some vehicles were parked on Nine Mile Road and others were located on the right side of the exit ramp where it intersects Nine Mile Road. The officers were standing at the stop sign at the top of the exit ramp and approached drivers as they came to the stop sign.

At approximately 11:17 p.m. Sergeant Marjorie Tussing observed a small pickup truck proceed up the exit ramp and stop on the shoulder of the exit ramp approximately thirty yards before the roadblock. She testified that the roadblock was visible from where the truck stopped. After the truck stopped Tussing approached the vehicle on foot. She observed a short stocky man Thomas exit the driver's side door and walk around to the passenger's side of the truck. Then a taller thin man exited from the passenger's side door and stood beside the shorter man.

When Tussing approached Thomas and stated "You were driving " Thomas responded "I was not." Tussing then asked Thomas for his name and "other DMV information." She checked the information on a computer and learned that Thomas' status was "suspended habitual offender notice received."

During their conversation Tussing noticed a strong odor of alcohol about Thomas' person and noticed that his eyes were bloodshot. She then required Thomas to perform several field sobriety tests. When Thomas refused to take "the field breath test " Tussing placed Thomas under arrest and subsequently read him the implied consent law. Thomas refused to submit to a blood or breath test.

On this evidence the trial Court overruled Thomas' motion to suppress the evidence and found Thomas guilty of driving after having been adjudicated an habitual offender and of violating the implied consent law. The trial Court found Thomas not guilty of driving under the influence of alcohol.

"Stopping a motor vehicle and detaining the operator [at a roadblock] constitute a 'seizure' within the meaning of the Fourth Amendment." Lowe v. Commonwealth 230 Va. 346 349 337 S.E.2d 273 275 (1985) cert. denied 475 U.S. 1084 (1986). "In order to ensure that 'an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field

. . . [seizures at roadblocks] must be carried out pursuant to a plan embodying explicit neutral limitations on the conduct of individual officers.'" Crandol v. City of Newport News 238 Va. 697 700 386 S.E.2d 113 114 (1989) (citations omitted). "Under the Fourth Amendment the Commonwealth has the burden of proving the legitimacy of a warrantless search and seizure." Simmons v. Commonwealth 238 Va. 200 204 380 S.E.2d 656 659 (1989).

The evidence proved that the vehicle stopped within thirty yards of the roadblock on the highway ramp leading to the roadblock. The reasonable inference to be drawn from the evidence is that the only direction of travel available to the vehicle was to the roadblock. Indeed the police officer who approached the vehicle testified that the vehicle stopped because of the roadblock. Thus the facts of this case are unlike Stroud v. Commonwealth 6 Va. App. 633 370 S.E.2d 721 (1988) where this Court held that when the driver made a U-turn and drove away from the roadblock he was not stopped by the roadblock. Id. at 636 370 S.E.2d at 723. The evidence in this case proved that the vehicle was stopped at the roadblock and that the officer's approach to the vehicle and detention of Thomas occurred within the roadblock's zone and by virtue of the officer's duties at the roadblock.

No evidence in the record proved however "that the procedure for establishing [the] roadblock[] was 'safe and objective in its operation employed neutral criteria and [did] not involve standardless unbridled discretion by the police officer in the field.'" Simmons 238 Va. at 203 380 S.E.2d at 658 (citation omitted). At the conclusion of the evidence Thomas argued that the evidence failed to prove that the roadblock was established pursuant to criteria that satisfied the Fourth Amendment. The trial Court denied the motion to suppress. The following holding in Simmons is applicable to this case:

On the basis of this record we hold that the Commonwealth has not met its burden. Without evidence that the [officers] were using an objective non discretionary procedure we hold that the initial stop of [Thomas'] automobile violated the Fourth Amendment. Because the initial detention of [Thomas] was unreasonable the trial court should have suppressed all of the evidence seized as a result of that stop. Accordingly the judgment of . . . the trial court will be reversed and the prosecution will be dismissed.

238 Va. at 204 380 S.E.2d at 659.

For these reasons we reverse the conviction for driving after having been declared an habitual offender in violation of SEC. 46.2-357. This Court does not have jurisdiction however over an appeal from a conviction of refusal to take a blood or breath test. See Commonwealth v. Rafferty 241 Va. 319 402 S.E.2d 17 (1991). Therefore the portion of the appeal challenging the conviction under Code SEC. 18.2-268.3 is transferred to the Supreme Court of Virginia pursuant to Code SEC. 8.01-677.1.

Reversed and dismissed in part and transferred in part.