Can a Virginia prosecutor amend a municipal ordinance charge into the equivalent state-law charge when local police made the arrest, and does a judge have to approve?

Plain-English summary

The Commonwealth's Attorney for Hopewell asked whether a prosecutor can amend a misdemeanor charged as a violation of a municipal ordinance to the equivalent state-law misdemeanor when the arrest was made by local police or a sheriff's deputy. He also asked whether such an amendment is subject to judicial review. The questions built on a prior opinion of this Office that read § 46.2-1308 as expressly limited to Title 46.2 violations, leaving prosecutorial discretion intact for charges outside that title.

Cuccinelli concluded that § 46.2-1308 says nothing about the converse direction (municipal to state) and nothing about cases brought by local police or sheriff's deputies. Because the statute speaks only to state-police arrests under Title 46.2, that silence is presumed intentional: § 46.2-1308 covers only what it covers. A prosecutor remains free to move to amend a municipal-ordinance misdemeanor charge to the equivalent state-law charge when the arrest came from local police or a sheriff's deputy.

On the second question, the AG held the amendment is subject to judicial review and can be made only by a judicial officer. The Code anchors arrest-warrant amendments in § 16.1-129.2 (general district court may amend "the form of the warrant in any respect in which it appears to be defective") and § 19.2-71 (process issued by judge, clerk, or magistrate). A prior opinion of this Office concluded that neither a chief of police nor a Commonwealth's Attorney can unilaterally withdraw or dismiss a lawfully issued warrant. Once the warrant is issued, charges become the province of the judicial branch. Prosecutorial discretion still governs the initiation, order, and timing of charges, but post-issuance amendments require court action.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did § 46.2-1308 actually do?
It required that, when state police (or another state-government division) made an arrest or summons for a motor-vehicle violation under Title 46.2, the defendant be charged and tried under state law (with fines going to the Literary Fund). The statute is silent on amendments running the other direction or on local police actions.

If § 46.2-1308 only mentions state-police arrests, what about everything else?
The opinion treats the statute's silence as intentional. Because § 46.2-1308 refers only to arrests or summonses brought under Title 46.2 by the Department of State Police or another division of state government, the exclusion of all other arrests is presumed to be intentional. Municipal-to-state amendments and local-police arrests fall outside the statute, leaving prosecutorial discretion intact.

Why does the amendment require judicial review?
Section 16.1-129.2 vests the general district court (on its own motion or at the request of counsel) with authority to amend warrant forms. Section 19.2-71 limits process issuance to judges, clerks, and magistrates. A prior opinion of this Office explained that neither a chief of police nor a Commonwealth's Attorney can unilaterally withdraw or dismiss a lawfully issued warrant. Once the warrant exists, only an "appropriate judicial officer" can make amendments.

What about prosecutorial discretion?
It still controls the initiation, order, and timing of charges. The Commonwealth's Attorney decides what to charge in the first instance and can move to amend later. But the actual amendment after issuance has to go through the court.

Background and statutory framework

Section 46.2-1308 governs municipal-state interplay in motor-vehicle cases. It provides that for cases involving state-police arrests under Title 46.2, the defendant must be charged and tried under state law (fines going to the Literary Fund). Willful failure to comply is a Class 4 misdemeanor.

Section 19.2-71 limits arrest warrant issuance to judges, clerks, and magistrates. Section 16.1-129.2 allows the general district court, on its own motion or at the request of counsel, to "amend the form of the warrant in any respect in which it appears to be defective."

The opinion describes the institution of criminal charges, and their order and timing, as matters of prosecutorial discretion, an inherently executive function. But once a warrant or summons is issued, the charge belongs to the judicial branch.

The opinion reads § 46.2-1308 narrowly: a statute stating the manner in which something may be done, or the entity that may do it, evinces a legislative intent that it not be done otherwise, so only what the statute mentions is covered.

Citations

• Va. Code § 2.2-505 (authority for official advisory opinions)
• Va. Code § 46.2-1308 (Literary Fund clause; state-police Title 46.2 charges)
• Va. Code § 19.2-71 (issuance of arrest warrants)
• Va. Code § 16.1-129.2 (district court authority to amend warrant form)
• Va. Code §§ 46.2-1300, 46.2-1304 (municipal motor-vehicle ordinances)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2012/11-080_Newman.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

February 17, 2012

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Richard K. Newman
Commonwealth Attorney for the City of Hopewell
100 E. Broadway Room #252
Hopewell, Virginia 23860

Dear Mr. Newman:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether a prosecutor may amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department. You also inquire, if a prosecutor is permitted to make such an amendment, whether the amendment is subject to judicial review.

Response

It is my opinion that, while a prosecutor is permitted to move to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department, any such an amendment is subject to judicial review and may be made only by an appropriate judicial officer.

Applicable Law and Discussion

You note your questions arise from a previous Opinion of this Office. That opinion addressed whether § 46.2-1308 prohibits a prosecutor from amending a misdemeanor charge alleging a violation of state law to the equivalent municipal ordinance in the situation where the arrest or summons was issued by an officer of the Department of State Police for offenses found in titles other than Title 46.2. The opinion concluded that the restriction on prosecutorial discretion contained in § 46.2-1308 is expressly limited to violations under Title 46.2, so that a prosecutor remains otherwise free to exercise his discretion in bringing and amending charges for violations of other provisions outside Title 46.2.

Section 46.2-1308 provides:

In counties, cities, and towns whose governing bodies adopt the ordinances authorized by §§ 46.2-1300 and 46.2-1304, all fines imposed for violations of such ordinances shall be paid into the county, city, or town treasury. Fees shall be disposed of according to law.

In all cases, however, in which an arrest is made or the summons is issued by an officer of the Department of State Police or of any other division of the state government, for violation of the motor vehicle laws of the Commonwealth, the person arrested or summoned shall be charged with and tried for a violation of some provision of this title and all fines and forfeitures collected upon convictions or upon forfeitures of bail of any person so arrested or summoned shall be credited to the Literary Fund.

Willful failure, refusal or neglect to comply with this provision shall constitute a Class 4 misdemeanor and may be grounds for removal of the guilty person from office. Charges for dereliction of the duties here imposed shall be tried by the circuit court of the jurisdiction served by the officer charged with the violation.

With respect to your inquiry, § 46.2-1308 is silent regarding a prosecutor's discretion to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent state charge alleging a violation of state law when such an arrest or summons is issued by a local police department or deputy for a local sheriff's department. Thus, as explained in the earlier opinion, because § 46.2-1308 does not refer to arrests or summons issued other than those brought under Title 46.2 and issued by an officer of the Department of State Police or any other division of state government, the exclusion of all other arrests or summons outside of Title 46.2 and issued by the Department of State Police is presumed to be intentional. Additionally, § 46.2-1308 does not place any limitation on arrest warrants or summonses if issued by a local police department or local sheriff's department. Accordingly, I find no limitation on a prosecutor's discretion that prohibits him from amending a misdemeanor charge alleging a violation of a municipal ordinance being amended to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department.

Turning to your second question, § 19.2-71 provides that process for the arrest of a person charged with a criminal offense may be issued by a judge, clerk of court, or any magistrate. Section 16.1-129.2 provides that, upon the trial of a warrant, the general district court may, on its own motion or at the request of counsel for either side, "amend the form of the warrant in any respect in which it appears to be defective." Also, a prior Opinion of this Office concluded that neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons.

It is an accepted principle of statutory construction that a statute stating the manner in which something may be done, or the entity that may do it, also evinces the legislative intent that it not be done otherwise. The Code clearly establishes that it is the court, rather than the prosecutor, who ultimately has authority to amend a warrant. Because the relevant statutes indicate, and prior Opinions of this Office conclude, that changes or corrections to warrants should be regarded as amendments, logic dictates that those same procedures govern making amendments to a lawfully issued arrest warrant or summonses.

I therefore conclude that amending an arrest warrant or summons is subject to judicial review, and may only be made by an appropriate judicial officer. Nonetheless, this conclusion does not limit the long-standing and well-recognized doctrine of prosecutorial discretion, an inherently executive function. The institution of criminal charges, as well as their order and timing, are matters of prosecutorial discretion. Once an arrest warrant or summons is issued, however, the charges become the province of the judicial branch, and are no longer within the unfettered purview of the Commonwealth's Attorney.

Conclusion

Accordingly, it is my opinion that, while a prosecutor is permitted to move to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department, any such an amendment is subject to judicial review and may be made only by an appropriate judicial officer.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General of Virginia