A. A person arrested without a warrant shall be brought forthwith before a magistrate or other issuing authority having jurisdiction who shall proceed to examine the officer making the arrest under oath. If the magistrate or other issuing authority having jurisdiction has lawful probable cause upon which to believe that a criminal offense has been committed, and that the person arrested has committed such offense, he shall issue either a warrant under the provisions of § 19.2-72 or a summons under the provisions of § 19.2-73.
As used in this section the term "brought before a magistrate or other issuing authority having jurisdiction" shall include a personal appearance before such authority or any two-way electronic video and audio communication meeting the requirements of § 19.2-3.1, in order that the accused and the arresting officer may simultaneously see and speak to such magistrate or authority. If electronic means are used, any documents filed may be transmitted in accordance with § 19.2-3.1.
If a warrant is issued the case shall thereafter be disposed of under the provisions of §§ 19.2-183 through 19.2-190, if the issuing officer is a judge; under the provisions of §§ 19.2-119 through 19.2-134, if the issuing officer is a magistrate or other issuing officer having jurisdiction.
If such warrant or summons is not issued, the person so arrested shall be released.
B. A warrant may be issued pursuant to this section, where the person has been arrested in accordance with § 19.2-81.6, and the magistrate or other issuing authority examines the officer making the arrest under oath, and finds lawful probable cause to believe the arrested individual meets the conditions of clauses (i) and (ii) of § 19.2-81.6. If such warrant is issued, it shall recite § 19.2-81.6 and the applicable violation of federal criminal law previously confirmed with Immigration and Customs Enforcement. Upon the person being taken into federal custody, such state warrant shall be dismissed. Any warrant issued under this subsection shall expire within 72 hours, or when the person is taken into federal custody, whichever occurs first. Recurrent applications for a warrant under this subsection shall not be permitted within a six-month period except where confirmation has been received from Immigration and Customs Enforcement that the arrested person will be taken into federal custody.
Code 1950, § 19.1-100.1; 1968, c. 639; 1975, c. 495; 1981, c. 382; 1983, c. 564; 1984, c. 766; 1991, c. 41; 2002, c. 310; 2004, cc. 360, 412; 2009, c. 669.
Notes of Decisions
Cited in
43
cases (
4 in the last 5 years), 1981–2026 · leading case:
Frye v. Commonwealth, 345 S.E.2d 267 (Va. 1986).
Frye v. Commonwealth, 345 S.E.2d 267 (Va. 1986).
· cites it 10× “Code § 19.2-82; Holt v. City of Richmond, 204 Va.”
Debroux v. Commonwealth, 528 S.E.2d 151 (Va. Ct. App. 2000).
· cites it 10× “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 person from…”
Jones v. Town of Marion, 508 S.E.2d 921 (Va. Ct. App. 1999).
· cites it 16× “2-267, and (2) the arresting officer failed to bring him before a magistrate to determine probable cause as required by Code § 19.2-82. Finding no reversible error, we affirm.”
Moore v. Commonwealth, 622 S.E.2d 253 (Va. Ct. App. 2005).
· cites it 8× “The statute also sets forth several exceptions to this general rule, providing that an officer may effectuate a warrantless arrest, pursuant to Code § 19.2-82, if: (1) "any such person shall fail or refuse to discontinue the unlawful act," or (2) "if any person is believed by…”
Ware v. James City Cnty., Virginia, 652 F. Supp. 2d 693 (E.D. Va. 2009).
· cites it 3× “) James took Ware to the Magistrate’s office where, pursuant to Va.Code § 19.2-82, he was examined and he requested that the Magistrate issue warrants for disorderly conduct, obstruction of justice, and assault and battery of a police officer.”
Moore v. Commonwealth, 609 S.E.2d 74 (Va. Ct. App. 2005).
· cites it 4× “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…”
Rhodes v. Commonwealth, 513 S.E.2d 904 (Va. Ct. App. 1999).
· cites it 4× “Additionally, the officer shall proceed with the arresting provisions of Code § 19.2-82 in the following situations: (1) "if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection”; (2) "if any person is…”
West v. Commonwealth, 549 S.E.2d 605 (Va. Ct. App. 2001).
· cites it 3× “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…”
Smith v. Commonwealth, 519 S.E.2d 831 (Va. Ct. App. 1999).
· cites it 3× “2-74(A)(2) specifically provides that the violator may be arrested in accordance with Code § 19.2-82 if the person fails or refuses to discontinue the unlawful act.”
Moore v. Com., 636 S.E.2d 395 (Va. 2006).
· cites it 2× “" The Code section also contains several exceptions allowing a warrantless arrest pursuant to Code § 19.2-82 "if any such person shall fail or refuse to discontinue the unlawful act" or "if any person is believed by the arresting officer to be likely to disregard a summons .”
Alatishe v. Commonwealth, 404 S.E.2d 81 (Va. Ct. App. 1991).
· cites it 2× “We uphold the ruling of the trial court that the delay in bringing Alatishe before the magistrate in violation of Code § 19.2-80 does not require exclusion of his statements.”
Fox v. Commonwealth, 598 S.E.2d 770 (Va. Ct. App. 2004).
· cites it 2× “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…”
— Va. Code Ann. § 19.2-82(A) — 4 cases
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