A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.
Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.
2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.
3. Unless otherwise authorized by law, any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.). Reports to the Central Criminal Records Exchange concerning such persons shall be made pursuant to subdivision A 2 of § 19.2-390 and subsection C of § 19.2-390.
Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82.
Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128, regardless of the disposition of, and in addition to, the charge upon which he was originally arrested.
Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.
B. Conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) may issue summonses pursuant to this section, if such officers are in uniform or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.
C. The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2-388. If the summons is issued for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, the summons shall reference the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code.
Code 1950, § 19.1-92.1; 1973, c. 98; 1974, c. 481; 1975, c. 495; 1976, c. 753; 1978, c. 500; 1979, cc. 679, 680; 1980, c. 492; 1981, c. 382; 1982, cc. 485, 500; 1984, c. 24; 1988, c. 455; 1995, c. 471; 2010, c. 840; 2014, c. 543; 2019, cc. 782, 783; 2021, Sp. Sess. I, cc. 524, 542.
Notes of Decisions
Cited in
72
cases (
2 in the last 5 years), 1982–2023 · leading case:
Moore v. Commonwealth, 609 S.E.2d 74 (Va. Ct. App. 2005).
Moore v. Commonwealth, 609 S.E.2d 74 (Va. Ct. App. 2005).
· cites it 128× “Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2…”
Hunt v. Commonwealth, 585 S.E.2d 827 (Va. Ct. App. 2003).
· cites it 86× “On appeal, Hunt contends the trial court erred in denying his motion to suppress evidence taken from his person, claiming he was searched in violation of Code § 19.2-74 and the Fourth Amendment. We hold the search was unreasonable.”
Moore v. Commonwealth, 622 S.E.2d 253 (Va. Ct. App. 2005).
· cites it 108× “[4] The Commonwealth reasons that, because Moore was the only one driving the car, and because he did not have a valid driver's license, Moore ultimately would "fail to discontinue the unlawful act.”
Debroux v. Commonwealth, 528 S.E.2d 151 (Va. Ct. App. 2000).
· cites it 32× “Code § 19.2-74 provides that an arresting officer who has custody of a person for certain misdemeanor offenses, including disorderly conduct, ordinarily shall issue the person a summons and, upon his written promise to appear in compliance with the summons, shall release that…”
Moore v. Com., 636 S.E.2d 395 (Va. 2006).
· cites it 17× “2-74 requires that the police issue a summons to a person detained for a Class 1 misdemeanor and to forthwith release him from custody upon his promise to appear at a specified time and place, unless he is subject to one or more of the exceptions listed in the statute. Moore…”
Fox v. Commonwealth, 598 S.E.2d 770 (Va. Ct. App. 2004).
· cites it 18× “He argues that he was taken into custody in violation of Code § 19.2-74 and that the contraband seized during the search incident to that custodial arrest should have been suppressed.”
Virginia v. Moore, 553 U.S. 164 (2008).
· cites it 3× “Va.Code Ann. § 19.2-74 (Lexis 2004). The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination.”
Lovelace v. Commonwealth, 522 S.E.2d 856 (Va. 1999).
· cites it 14× “1-308, the officer could have issued only a summons pursuant to Code § 19.2-74(A)(2). 5 Continuing, Lovelace argues that neither a concern for officer safety nor a need to preserve or discover evidence existed during his encounter with Sweeney and Womack.”
Brown v. City of Danville, 606 S.E.2d 523 (Va. Ct. App. 2004).
· cites it 6× “6 Moreover, although Code § 19.2-74 provides that police officers are not authorized to arrest individuals for most misdemeanors (such as obstruction of justice), the statute also indicates that the officer may proceed .”
West v. Commonwealth, 549 S.E.2d 605 (Va. Ct. App. 2001).
· cites it 11× “2-936 parallels Code § 19.2-74 in reiterating the preference for issuance of a summons with regard to violations of the Motor Vehicle Code.”
Hines v. Commonwealth, 576 S.E.2d 781 (Va. Ct. App. 2003).
· cites it 12× ““Any person refusing to give such written promise to appear under the provisions of [Code § 19.2-74] shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction----” Code § 19.”
Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).
· cites it 11× “Plaintiff’s assertion that the arrest was violative of Virginia law proceeds solely on his assumption that Va.Code § 19.2-74 required the arresting officers to issue plaintiff a summons instead of executing the warrant by arresting him.”
— Va. Code Ann. § 19.2-74(2) — 1 case
— Va. Code Ann. § 19.2-74(A) — 3 cases
— Va. Code Ann. § 19.2-74(A)(1) — 16 cases
Debroux v. Commonwealth, 528 S.E.2d 151 (Va. Ct. App. 2000).
“Code § 19.2-74 provides that an arresting officer who has custody of a person for certain misdemeanor offenses, including disorderly conduct, ordinarily shall issue the person a summons and, upon his written promise to appear in compliance with the summons, shall release that…”
Moore v. Commonwealth, 609 S.E.2d 74 (Va. Ct. App. 2005).
“Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2…”
Hunt v. Commonwealth, 585 S.E.2d 827 (Va. Ct. App. 2003).
“On appeal, Hunt contends the trial court erred in denying his motion to suppress evidence taken from his person, claiming he was searched in violation of Code § 19.2-74 and the Fourth Amendment. We hold the search was unreasonable.”
Moore v. Commonwealth, 622 S.E.2d 253 (Va. Ct. App. 2005).
“[4] The Commonwealth reasons that, because Moore was the only one driving the car, and because he did not have a valid driver's license, Moore ultimately would "fail to discontinue the unlawful act.”
— Va. Code Ann. § 19.2-74(A)(2) — 23 cases
Lovelace v. Commonwealth, 522 S.E.2d 856 (Va. 1999).
“1-308, the officer could have issued only a summons pursuant to Code § 19.2-74(A)(2). 5 Continuing, Lovelace argues that neither a concern for officer safety nor a need to preserve or discover evidence existed during his encounter with Sweeney and Womack.”
Moore v. Commonwealth, 609 S.E.2d 74 (Va. Ct. App. 2005).
“Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2…”
Moore v. Commonwealth, 622 S.E.2d 253 (Va. Ct. App. 2005).
“[4] The Commonwealth reasons that, because Moore was the only one driving the car, and because he did not have a valid driver's license, Moore ultimately would "fail to discontinue the unlawful act.”
Hunt v. Commonwealth, 585 S.E.2d 827 (Va. Ct. App. 2003).
“On appeal, Hunt contends the trial court erred in denying his motion to suppress evidence taken from his person, claiming he was searched in violation of Code § 19.2-74 and the Fourth Amendment. We hold the search was unreasonable.”
Moore v. Com., 636 S.E.2d 395 (Va. 2006).
“2-74 requires that the police issue a summons to a person detained for a Class 1 misdemeanor and to forthwith release him from custody upon his promise to appear at a specified time and place, unless he is subject to one or more of the exceptions listed in the statute. Moore…”
— Va. Code Ann. § 19.2-74(A)(3) — 4 cases
Hines v. Commonwealth, 576 S.E.2d 781 (Va. Ct. App. 2003).
““Any person refusing to give such written promise to appear under the provisions of [Code § 19.2-74] shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction----” Code § 19.”
— Va. Code Ann. § 19.2-74(a) — 1 case
Brown v. City of Danville, 606 S.E.2d 523 (Va. Ct. App. 2004).
“6 Moreover, although Code § 19.2-74 provides that police officers are not authorized to arrest individuals for most misdemeanors (such as obstruction of justice), the statute also indicates that the officer may proceed .”
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