If a Virginia school bus stop-arm video camera captures a driver illegally passing, can the locality just mail the driver a summons, or does it have to be served in person?

Plain-English summary

Virginia school divisions can install cameras on school bus stop arms to catch drivers who illegally pass stopped buses. The statute creating that program (Va. Code § 46.2-844) sets a $250 civil penalty and says the prosecution "shall be instituted and conducted in the same manner as prosecutions for traffic infractions." But the statute doesn't say anything about service by mail.

Albemarle County had enacted a local ordinance under the statute and wanted to know whether it could mail summonses to violators identified by the video monitoring system, the way "photo red" violations work for red-light cameras. County Attorney Larry Davis asked the Attorney General for clarification.

Attorney General Herring concluded that mailed summonses are not authorized for § 46.2-844 prosecutions. Service must be personal, by a law enforcement officer.

Three reasons:

1. The "photo red" statute (Va. Code § 15.2-968.1) expressly authorizes mailed service "[n]otwithstanding the provisions of § 19.2-76." Section 46.2-844 contains no comparable language. When the General Assembly wants to authorize mailed service for a video-based traffic enforcement program, it knows how to say so. The absence of authorizing language is itself an answer.

2. The legislative history reinforces the conclusion. The original 2011 bill that became § 46.2-844 had included a provision authorizing mailed summonses, but that language was removed before enactment. The General Assembly deliberately chose not to allow it.

3. Virginia follows the Dillon Rule, which limits localities to expressly granted powers, fairly implied powers, and essential and indispensable powers. Without express statutory authority, a locality cannot use mailed service for a § 46.2-844 prosecution.

The default service rule of Va. Code § 19.2-76 requires personal service of summonses. And § 46.2-844 says prosecutions follow the traffic infraction rules in § 46.2-936 (officer issues summons for misdemeanor traffic offense) and § 46.2-937 (treating traffic infractions as misdemeanors for arrest purposes). Those rules contemplate personal service.

So if a school bus camera catches a driver illegally passing, the locality (or the prosecuting authority) must arrange for a law enforcement officer to personally serve the summons. Mailing alone is not enough to initiate the prosecution.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The General Assembly has at times revisited the video-camera traffic enforcement statutes; verify the current text of § 46.2-844 before relying on any specific procedure mentioned here.

Common questions

Can the school division just identify the vehicle owner and send them a warning letter?

A warning letter without legal effect isn't the same as a summons. The opinion says a summons can't be mailed to initiate a prosecution. A warning letter that doesn't initiate a prosecution is a different matter, but it also wouldn't trigger the $250 civil penalty unless a properly served summons follows.

What does "personal service" require?

Under § 19.2-76, a summons "shall be executed by delivering a copy to the accused personally." A law enforcement officer (or jail officer for in-custody persons) must do the hand-delivery.

What about the "photo red" red-light camera program?

Different statute. Va. Code § 15.2-968.1 expressly authorizes mailed service for red-light camera violations. That express authorization is what makes "photo red" mail service legal.

Could the General Assembly fix this by amending § 46.2-844 to allow mail service?

Yes. The opinion's bottom line is that the General Assembly could authorize mail service if it wanted to, but it deliberately chose not to. A future amendment could change that.

Does this affect parking ticket enforcement?

No. Va. Code § 19.2-76.2 specifically authorizes mailed summonses for parking and trash ordinance violations. Those are different statutes with their own authorization.

Background and statutory framework

Virginia law makes illegally passing a stopped school bus a traffic offense punishable as reckless driving (Va. Code § 46.2-859). The 2011 General Assembly added an alternative civil penalty regime under § 46.2-844, allowing video monitoring on school buses (per a local ordinance) to enforce a $250 civil penalty.

Section 46.2-844 provides:

• $250 civil penalty for the violation
• Prosecution "shall be instituted and conducted in the same manner as prosecutions for traffic infractions"
• Locality may authorize video-monitoring systems by ordinance

What's conspicuously missing: any authorization for mailed summonses. Herring contrasted this with Va. Code § 15.2-968.1 (the "photo red" red-light camera statute), which expressly says:

"A summons for a violation of this section may be executed pursuant to § 19.2-76.2. Notwithstanding the provisions of § 19.2-76, a summons for a violation of this section may be executed by mailing by first class mail a copy thereof to the owner, lessee, or renter of the vehicle."

That language is the model for express authorization. The absence of comparable language in § 46.2-844 means no mail service authorization.

The default service rule in Va. Code § 19.2-76 requires personal service of summonses, with limited exceptions (in-custody persons may be served by a jail officer). Sections 46.2-936 and 46.2-937 govern issuing summonses for traffic offenses, and they contemplate personal service by a law enforcement officer who has detained or has in custody the offender.

A prior opinion of the Attorney General had reached a parallel conclusion about an earlier version of the "photo red" statute that did not yet contain the mail-service authorization, stating that without express authority a local ordinance could not provide for mailed warnings in lieu of issuing traffic summonses. The General Assembly added the mail-service authorization to the photo-red statute later, confirming that express authorization is needed.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 15.2-968.1 ("photo red" red-light camera enforcement, with mail-service authorization)
• Va. Code Ann. § 15.2-2157 (local health director sewage violation notices)
• Va. Code Ann. § 15.2-2209 (zoning code violation notices)
• Va. Code Ann. § 19.2-76 (default personal service of summonses)
• Va. Code Ann. § 19.2-76.2 (mail service for parking and trash ordinance violations)
• Va. Code Ann. § 46.2-102 (officer's enforcement of traffic infractions)
• Va. Code Ann. § 46.2-844 (illegal passing of stopped school bus, video monitoring)
• Va. Code Ann. § 46.2-859 (reckless driving from passing stopped school bus)
• Va. Code Ann. §§ 46.2-936, 46.2-937, 46.2-940 (issuance and service of traffic summonses)
• 2011 enactment of the § 46.2-844 video-monitoring provision (the initial bill's mail-service language was dropped before passage)
• Williams v. Commonwealth, 61 Va. App. 1 (2012)
• Tabler v. Bd. of Supvrs. of Fairfax Cnty., 221 Va. 200 (1980)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/Davis_15-047.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
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
October 2, 2015
804-786-2071

Larry W. Davis, Esquire
County Attorney for Albemarle County
401 McIntire Road, Suite 325
Charlottesville, Virginia 22902-4596

Dear Mr. Davis:

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

Issues Presented

Section 46.2-844 of the Code of Virginia imposes a civil penalty on a driver who illegally passes a stopped school bus, and it authorizes the use of video monitoring systems in such cases. You ask whether a locality may mail an alleged violator a notice of violation requesting payment of a civil penalty, where the evidence against him is video from a video monitoring system. You also ask whether a prosecution for violating this statute must be instituted by a law enforcement officer issuing a summons to the alleged violator.

Applicable Law and Discussion

With certain exceptions, and under certain conditions, passing a stopped school bus comprises the traffic offense of reckless driving. As an alternative to a reckless driving charge, a civil penalty may be imposed on an alleged violator under § 46.2-844. In relevant part, the civil penalty statute allows the charge to be based on video monitoring, pursuant to a local ordinance:

A. The driver of a motor vehicle approaching from any direction a clearly marked school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children, the elderly, or mentally or physically handicapped persons, who, in violation of § 46.2-859, fails to stop and remain stopped until all such persons are clear of the highway, private road or school driveway, is subject to a civil penalty of $250 and any prosecution shall be instituted and conducted in the same manner as prosecutions for traffic infractions. . . .

B. A locality may, by ordinance, authorize the school division of the locality to install and operate a video-monitoring system in or on the school buses operated by the division . . . for the purpose of recording violations of subsection A.

The video monitoring portion of this statute was enacted in 2011. Prior to enactment, the initial bill authorized the mailing of a summons to an alleged violator, but this language was not in the bill that was ultimately enacted into law. You relate that on July 2, 2014, Albemarle County enacted a video monitoring ordinance authorized by this statute.

By a statute of general application, § 19.2-76, summonses executed by law enforcement officers must be executed in person.

A related statute, § 15.2-968.1 of the Code of Virginia, addresses enforcing alleged traffic light violations, where the evidence is from video monitoring. These violations are commonly known as "photo red" violations. The statute provides an exception to the general rule requiring personal service of summonses by allowing this particular type of summons to be mailed:

A summons for a violation of this section may be executed pursuant to § 19.2-76.2 [authorizing mailing a summons for violation of a parking ordinance or a trash ordinance]. Notwithstanding the provisions of § 19.2-76, a summons for a violation of this section may be executed by mailing by first class mail a copy thereof to the owner, lessee, or renter of the vehicle.

It must be assumed that the General Assembly chose its words with care in enacting the two statutes. Because one statute authorizes mailing summonses while the other statute does not for a comparable offense, the General Assembly must have intended the absence of legal authority in the second statute to mean exactly that: § 46.2-844 does not authorize any official to mail a summons for passing a stopped school bus.

Various other statutes authorize localities to use summonses to give notice of various violations of law punishable by civil penalties: zoning administrators may issue notices of zoning code violations, and local health directors may issue notices of violations for onsite sewage violations. In addition, violations of a parking ordinance or a trash ordinance may be commenced by mailing a summons to the alleged violator. However, there is no statute specifically authorizing mailed service of a summons for passing a stopped school bus.

A prior Opinion of this Office concluded that the use of mailed warnings to notify alleged violators of possible violations was prohibited unless the General Assembly had granted express authority to do so. The Opinion discussed an earlier version of the "photo red" statute that did not contain the authorization for mailing summonses. In relevant part, it stated, "The General Assembly has not provided for the issuance of written warnings for violation[s] of this section. Therefore, I am of the opinion that any local ordinance enacted pursuant to [the section] may not provide that written warnings be mailed to violators . . . in lieu of issuing traffic summonses."

Virginia follows the Dillon Rule, which provides that "local governing bodies have only those powers that are expressly granted, those that are necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable."

Because of the absence of statutory authority in § 46.2-844 or any other statute to mail a summons for passing a stopped school bus, in contrast to the express statutory authority in § 15.2-968.1 for mailing summonses for "photo red" violations, and because of the Dillon Rule, it is my opinion that a prosecution for violating § 46.2-844 may not be commenced by mailing a summons to the alleged violator.

Section 46.2-844 provides that "any prosecution shall be instituted and conducted in the same manner as prosecutions for traffic infractions." Law enforcement officers may enforce traffic infractions through the issuance and service of summonses. Issuance of a summons for a traffic offense is addressed by §§ 46.2-936 and 46.2-937.

As previously noted, § 19.2-76 requires summonses to be personally served, unless there is statutory authority for a different form of service in particular circumstances. No such other form of service is authorized for a violation of § 46.2-844. Accordingly, it is my further opinion that the only present statutory authority for initiating a prosecution for violating § 46.2-844 is § 46.2-936, providing for personal service of a summons by a law enforcement officer.

Conclusion

For the reasons stated, it is my opinion that a proceeding for violating § 46.2-844 may not be initiated by mailing a summons to the alleged violator. It may be initiated by a summons issued in compliance with all applicable legal requirements and then personally served on the alleged violator by a law enforcement officer.

With kindest regards, I am

Sincerely yours,

Mark R. Herring
Attorney General