Virginia Code

Va. Code Ann. § 46.2-936 (2026)

Arrest for misdemeanor; release on summons; right to demand hearing immediately or within 24 hours; issuance of warrant on request of officer for violations of §§ 46.2-301 and 46.2-302; violations

✓ current as of May 2026

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Whenever any person is detained by or in the custody of an arresting officer, including an arrest on a warrant, for a violation of any provision of this title punishable as a misdemeanor, the arresting officer shall, except as otherwise provided in § 46.2-940, take the name and address of such person and the license number of his motor vehicle 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. Such time shall be at least five days after such arrest unless the person arrested demands an earlier hearing. Such person shall, if he so desires, have a right to an immediate hearing, or a hearing within 24 hours at a convenient hour, before a court having jurisdiction under this title within the county, city, or town wherein such offense was committed. 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.

Notwithstanding the foregoing provisions of this section, if prior general approval has been granted by order of the general district court for the use of this section in cases involving violations of §§ 46.2-301 and 46.2-302, the arresting officer may take the person before the appropriate judicial officer of the county or city in which the violation occurred and make oath as to the offense and request issuance of a warrant. If a warrant is issued, the judicial officer shall proceed in accordance with the provisions of Article 1 (§ 19.2-119 et seq.) of Chapter 9 of Title 19.2.

Notwithstanding any other provision of this section, in cases involving a violation of § 46.2-341.24 or § 46.2-341.31, the arresting officer shall take the person before a magistrate as provided in §§ 46.2-341.26:2 and 46.2-341.26:3. The magistrate may issue either a summons or a warrant as he shall deem proper.

If any person refuses to give such written promise to appear under the provisions of this section, the arresting officer shall give such person notice of the time and place of the hearing, note such person's refusal to give his written promise to appear on the summons, and forthwith release him from custody.

Any person who willfully violates his written promise to appear or fails to appear at the time and place specified in such summons or notice issued in accordance with this section shall be treated in accordance with the provisions of § 46.2-938.

Any officer violating any of the provisions of this section shall be guilty of misconduct in office and subject to removal therefrom upon complaint filed by any person in a court of competent jurisdiction. This section shall not be construed to limit the removal of a law-enforcement officer for other misconduct in office.

Code 1950, § 46-193; 1950, p. 94; 1954, c. 174; 1958, c. 541, § 46.1-178; 1972, c. 477; 1975, c. 191; 1981, c. 382; 1983, c. 458; 1989, c. 727; 1990, c. 218; 1992, c. 830; 1999, cc. 829, 846; 2021, Sp. Sess. I, c. 338.

Notes of Decisions

Cited in 14 cases, 1993–2020 · leading case: Davis v. Commonwealth, 440 S.E.2d 426 (Va. Ct. App. 1994).

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Davis v. Commonwealth, 440 S.E.2d 426 (Va. Ct. App. 1994). · cites it 16× “Code § 46.2-936. The Commonwealth argues that, with respect to violations of Title 46.”

Virginia v. Moore, 553 U.S. 164 (2008). · cites it 2× “Virginia also permits arrest for driving on a suspended license in jurisdictions where "prior general approval has been granted by order of the general district court," Va.Code Ann. § 46.2-936; Virginia has never claimed such approval was in effect in the county where Moore was…”

White v. Commonwealth, 591 S.E.2d 662 (Va. 2004). · cites it 4× “2-74 (authorizing release of a person “in the custody of an arresting officer” upon issuing a summons for most misdemeanors); Code § 46.2-936 (same for most traffic offenses).”

Atwater v. City of Lago Vista, 532 U.S. 318 (2001). “§ 40 -7118(b)(1) (1997); Va. Code Ann. § 46.2-936 (Supp. 2000). It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration…”

West v. Commonwealth, 549 S.E.2d 605 (Va. Ct. App. 2001). · cites it 2× “Code § 46.2-936 parallels Code § 19.2-74 in reiterating the preference for issuance of a summons with regard to violations of the Motor Vehicle Code.”

Young v. Commonwealth, 706 S.E.2d 53 (Va. Ct. App. 2011). · cites it 4× “2-74(A)(3); see also Code § 46.2-936 (authorizing release on summons for a misdemeanor charge).”

Erie Lawrence v. Commonwealth, 578 S.E.2d 54 (Va. Ct. App. 2003). · cites it 2× “See Code § 46.2-936. The Commonwealth argues that the officer could have “reasonably .”

State v. Bayard, 71 P.3d 498 (Nev. 2003). “§ 40-7-118 (b)(1) (1997); Va. Code Ann. § 46.2-936 (Supp. 2000)). 13 Atwater, 532 U.”

Neiss v. Commonwealth, 433 S.E.2d 262 (Va. Ct. App. 1993). · cites it 2× “See also Code § 46.2-936 (authorizing issuance of summons in lieu of arrest for traffic infraction).”

United States v. Franklin, 284 F. App'x 266 (6th Cir. 2008). “” Va.Code Ann. § 46.2-936. See Moore, 128 S.”

Gwazdavskas v. Tharp (W.D. Va. 2020). · cites it 3× “Va. Code §§ 46.2-936, 46.2-940.8 Thus, because there was probable cause to arrest, Tharp had authority to use reasonable force to seize the plaintiff from the vehicle and arrest him.”

Commonwealth v. Dixon, 42 Va. Cir. 146 (Richmond County Cir. Ct. 1997). · cites it 7× “It shortcuts the requirement that the accused be returned before the issuing authority for the purpose of setting bail, thus minimizing imposition and inconvenience both to the accused and to the arresting officer.”

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