Is a Virginia Commonwealth's Attorney required to collect unpaid toll judgments owed to private toll facility operators, and may a court compel her to do so?

Plain-English summary

Virginia's all-electronic toll facilities (and the older manual and photo-monitoring variants) impose civil penalties on owners or operators of vehicles that fail to pay tolls, with judgments collected through court proceedings. Delegate Heretick asked three questions about how those judgments and proceedings work for private toll facilities (facilities operated by a private entity under a Comprehensive Agreement with a public owner, or under the Virginia Highway Corporation Act, or owned and operated outright by a private entity). A Commonwealth's Attorney had declined to undertake collection of unpaid private-toll judgments and the question was whether she had to.

The Attorney General answered:

1. Collection duty: Code § 19.2-349(C) makes it the duty of the Commonwealth's Attorney "to cause proper proceedings to be instituted for the collection and satisfaction of all fines, costs, forfeitures, penalties and restitution." But applying that to private-toll judgments would produce an "absurd" result: the CA would have to collect only "penalties" and "costs" while the private toll operator collects "unpaid tolls" and "administrative fees" separately, with two creditors competing for the same defendant's assets. The statutes governing toll civil penalties (Code §§ 46.2-819, 46.2-819.1(N), 46.2-819.3(M), 46.2-819.3:1(Q)) treat civil-penalty proceedings as distinct from criminal proceedings, and the toll civil penalties are paid to the toll operator, not the Commonwealth. Code § 46.2-819.3:1(G) expressly says the attorney for the Commonwealth "may" represent the operator's interests, which signals permissive rather than mandatory representation. So the CA is not required to collect, and a court cannot compel her. The court also cannot collect on its own under Code §§ 19.2-341 or 8.01-426.

2. Warrant in debt as initiating document: A toll-violation proceeding under § 46.2-819.3:1 is a traffic infraction (Code § 46.2-819.3:1(G)), and it must be initiated by a "summons" on a form prescribed by the Supreme Court of Virginia (specifically Form DC-285). It cannot be initiated by a warrant in debt. The same rule applies to companion sections § 46.2-819.1 and § 46.2-819.3.

3. DMV notice and payment plans: Code § 46.2-819.3:1(K) requires the court or the toll operator to notify DMV to refuse vehicle registration or license plate renewal when two or more unpaid tolls (plus civil penalties and administrative fees) remain unpaid. There is no statutory exemption for situations where the offender has agreed to an installment plan. So even when an offender is on a payment plan, the court or toll operator must still notify DMV.

Currency note

This opinion was issued in 2019. 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.

Background and statutory framework

Virginia has three statutes governing toll civil penalties depending on the toll-collection technology: § 46.2-819.1 (manual + photo-monitoring or AVI), § 46.2-819.3 (manual), and § 46.2-819.3:1 (all-electronic). All three follow a similar pattern: 30-day "debt collection" attempt by the operator, 120-day waiting period after the unpaid toll, then a civil-penalty action initiated by summons. The toll operator can settle the case before the hearing by accepting payment of the unpaid toll, administrative fees, and a reduced civil penalty.

The judgments these statutes produce have four components: civil penalty, unpaid toll, administrative fees, and court costs. The civil penalty cap on a first conviction is $2,200 regardless of how many tolls are involved. Under Code § 46.2-819.3:1(G), the toll operator can be represented by counsel, including the attorney for the Commonwealth.

Code § 19.2-349 is the general statute making the Commonwealth's Attorney responsible for collecting "fines, costs, forfeitures, penalties and restitution." On its face, "penalties" includes toll civil penalties. But the AG concluded the statute does not reach private-toll judgments because the result would be incoherent: the CA would collect part of the judgment, the private operator would collect the rest, and the two creditors would compete for the same defendant's assets. Statutory construction under the rule in VEPCO v. Citizens for Safe Power presumes the legislature does not intend absurd or irrational results. The toll-civil-penalty statutes are also structured separately from the criminal-prosecution provisions (which is where § 19.2-349 sits), reinforcing that they are meant to function independently.

The toll operator has its own collection tools under Code §§ 8.01-426 and 8.01-427. The operator can docket the judgment (§ 8.01-446), place a lien on real estate (§ 8.01-458), and obtain a writ of fieri facias (§ 8.01-466). And under § 46.2-819.3:1(K), the operator or the court is to notify DMV when two or more tolls are unpaid, triggering refusal to renew registration or plates for the vehicle that was driven in commission of the offense.

Common questions

Does the CA have any role at all in private-toll-judgment collections?
Yes, but it is permissive. Code § 46.2-819.3:1(G) lets the attorney for the Commonwealth represent the private toll operator. The CA may choose to do so, but cannot be compelled. If the CA declines, the private toll operator can collect on its own using the standard judgment-execution tools.

Why doesn't § 19.2-349 mandate CA collection here?
Because the statute references "fines, costs, forfeitures, penalties and restitution" but does not mention "unpaid tolls" or "administrative fees." If the CA were required to collect only the "penalty" and "costs" portion of a toll judgment, leaving the operator to collect the other portions separately, the two would compete for the same defendant's assets. The AG concluded the legislature did not intend that result.

Does the AG's reasoning extend to public toll facilities (like express lanes operated by VDOT)?
The opinion is limited to private toll facilities. Public-facility toll civil penalties may be paid to the Commonwealth or to a public authority and might bring § 19.2-349's collection duty into play, but that question is not addressed here.

Can a toll operator file a warrant in debt to start a toll case?
No. Code § 46.2-819.3:1(I) requires the action to be initiated by a summons on a form prescribed by the Supreme Court (DC-285). Filing a warrant in debt would be procedurally improper.

If a defendant is on an approved payment plan, must DMV still be notified?
Yes. Code § 46.2-819.3:1(K) has no exception for payment plans. Until the unpaid tolls, penalties, and fees are paid in full, DMV must be notified, and DMV must refuse registration or plates for the offending vehicle.

Can the offender argue that DMV's refusal is unfair when they're trying to pay?
The statute does not provide an exception. The policy may be debatable, but the legal duty to notify is clear. Practical relief would require statutory amendment or operator/court forbearance, not judicial intervention.

Does the court itself collect toll judgments?
No. The AG concluded that the court lacks statutory authority to initiate collection of toll civil penalties owed to a private operator. Code § 19.2-348 lets the circuit-court clerk initiate collections on judgments going to the Commonwealth, but private toll penalties go to the operator, not the Commonwealth.

Citations

• Va. Code § 19.2-349 (general CA collection duty)
• Va. Code § 46.2-819.3:1 (all-electronic toll civil-penalty statute)
• Va. Code § 46.2-819.1; § 46.2-819.3 (companion toll civil-penalty statutes)
• Va. Code § 19.2-341 (monetary penalty execution)
• Va. Code § 8.01-426; § 8.01-427 (judgment-creditor tools)
• Supreme Court of Virginia Form DC-285 (Summons for Toll Road or Designated Access Highway Violation)
• VEPCO v. Citizens for Safe Power, 222 Va. 866 (1981)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/18-021-Heretick-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

June 28, 2019

The Honorable Stephen E. Heretick
Member, Virginia House of Delegates
715 Loudoun Avenue
Portsmouth, Virginia 23707

Dear Delegate Heretick:

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

Your inquiry involves several questions related to unpaid tolls incurred at private toll facilities in
Virginia.[1] You first ask whether a Commonwealth's Attorney is required to collect judgments on unpaid toll
violations under § 19.2-349 of the Code of Virginia, and if so, whether a court may compel the
Commonwealth's Attorney to do so, or in the alternative, whether a court may collect such judgments under
its own initiative in the event the Commonwealth's Attorney declines to do so.

You next ask whether a court proceeding for an unpaid toll violation may be initiated under
§ 46.2-819.3:1 by the operator of a private toll facility by filing a warrant in debt, and if so, whether it would
be appropriate for the court to find the defendant guilty of a traffic infraction following trial in such a
proceeding and impose the amount of the civil penalties, unpaid tolls, and administrative fees without the
issuance of a separate traffic summons.

You further inquire whether a court may, under § 46.2-819.3:1(K), enter "paid" into the court's
automated financial management system when an offender has agreed to a payment plan for civil penalties,
unpaid tolls, and administrative fees so that the Department of Motor Vehicles (DMV) will not refuse to issue
or renew any vehicle registration certificate or license plate issued for the vehicle driven in the commission of
the toll offense.

Applicable Law and Discussion

1. Collection of Unpaid Toll Judgments

The enforcement and collection of unpaid tolls is governed by several sections of the Virginia Code.
If an unpaid toll matter proceeds to court under the civil penalty statutes,[2] the offender may be liable for
payment of civil penalties, unpaid tolls, administrative fees, and court costs. Your first question involves
collection of a judgment issued under § 46.2-819.3:1 resulting from unpaid tolls at a private facility.
Specifically, you ask whether a Commonwealth's Attorney is required to collect such a judgment under
§ 19.2-349.

Section 19.2-349(C) provides that it shall be the duty of the Commonwealth's Attorney "to cause
proper proceedings to be instituted for the collection and satisfaction of all fines, costs, forfeitures, penalties
and restitution."[3] If § 19.2-349 were to apply to judgments for unpaid tolls, a Commonwealth's Attorney
would have a duty to collect some, but not all, components of a judgment awarded a private toll facility[4]
operator under §§ 46.2-819.1, -819.3, or -819.3:1, thereby giving rise to an incomplete or piecemeal[5]
collection process involving execution of the same judgment by at least two different entities. Indeed, the
Commonwealth's Attorney and the private toll facility operator would be left to compete for the same assets
in collecting separate portions of the judgment. The rules of statutory construction presume that the
legislature does not intend a statute to lead to absurd results or irrational consequences such as this.[6]

A more coherent reading is that § 19.2-349 does not apply to § 46.2-819.3:1 or its companion
statutes, §§ 46.2-819.1 and -819.3 in the case of private toll facilities. In further support of this interpretation,
§§ 46.2-819, -819.1(N), -819.3(M), and -819.3:1(Q) provide that no person shall be subject to both criminal
prosecution and civil penalties for actions arising out of the same transaction or occurrence, thereby implying
that they are separate proceedings and that references to "penalties" and "costs" in the civil penalty statutes
should not fall within the meaning of the terms "penalties" and "costs" used in § 19.2-349. This reasoning
would be consistent with §§ 19.2-339, -340, and -341, which require fines and penalties under Chapter 21 of
Title 19.2 to be paid to the Commonwealth, whereas §§ 46.2-819.1(I), -819.3(H), and -819.3:1(J) require
penalties to be paid to the operator of the toll facility.

Finally, § 46.2-819.3:1(G) expressly provides that the attorney for the Commonwealth may
represent the interests of the operator of a private toll facility.[7] Thus, representation of the private toll facility
operator by an attorney for the Commonwealth, whether in the prosecution of the underlying offense or in
the collection of the judgment, is permissive rather than obligatory.

Accordingly, it is my opinion that a Commonwealth's Attorney may collect civil penalties, unpaid
tolls, and administrative fees awarded to a private toll facility operator under § 46.2-819.3:1, but is not
obligated to do so,[8] and I am not aware of any statute that would give the court express authority to compel
the Commonwealth's Attorney to perform a discretionary act.

It is also my opinion that the court lacks statutory authority to initiate the collection of such civil
penalties, unpaid tolls, and administrative fees. Section 19.2-341 provides that a monetary penalty shall
constitute a judgment and if not paid when imposed, shall be subject to execution in the same manner as any
other monetary judgment.[9] Similarly, § 8.01-426 provides that "a decree or order requiring the payment of
money ... shall have the effect of a judgment for such ... money."[10] I am not aware of any statute that
authorizes a court of law to initiate collection of monetary judgments in the scenario you have presented.[11]

2. Use of Warrant in Debt

You next ask whether a court proceeding for a toll violation may be initiated under § 46.2-819.3:1
by the operator of a private toll facility filing a warrant in debt, and if so, whether it would be appropriate for
the court to find the defendant guilty of a traffic infraction following trial and to impose civil penalties,
unpaid tolls, and administrative fees without the issuance of a separate traffic summons.

In keeping with the statute's classification of a civil penalty action for a toll violation as a traffic
infraction,[12] § 46.2-819.3:1(I) expressly provides that a court proceeding brought under the statute must
be initiated by "a summons."[13] The summons, moreover, must be completed "[o]n a form [that is]
prescribed by the Supreme Court."[14] No provision is made for the initiation of the action through a
warrant in debt. Accordingly, it is my opinion that a court proceeding for a toll violation brought under
§ 46.2-819.3:1 must be initiated by the completion and execution of a summons on a form prescribed by
the Supreme Court, as directed in the statute, rather than by the filing of a warrant in debt.[15]

3. Installment Plans and Notification of DMV

Section 46.2-819.3:1(K) provides that if two or more unpaid tolls, along with civil penalties and
administrative fees, have not been paid in full, the court or toll facility operator shall notify the
Commissioner of DMV, who shall refuse to issue or renew any vehicle registration certificate or the
license plate issued for the vehicle driven in the commission of the offense.[16] There is no provision
exempting the court or toll facility operator from giving notice to DMV in cases where the offender has
entered into an installment or payment plan for the unpaid toll. As such, if the unpaid tolls, administrative
fees, and civil penalties are not paid in full, the court or the toll facility operator is required to notify the
Commissioner of DMV.

Conclusion

Accordingly, it is my opinion that a Commonwealth's Attorney may collect unpaid tolls,
administrative fees, and civil penalties awarded to the operators of private toll facilities under § 46.2-819.3:1,
but is not obligated to do so, and a court is not authorized to compel a Commonwealth's Attorney to
undertake such a discretionary act, nor to undertake collection of such a monetary judgment on its own
initiative.

It is further my opinion that a court proceeding for a toll violation brought under § 46.2-819.3:1
must be initiated by a summons, rather than by filing a warrant in debt. Finally, it is my opinion that
despite an offender's agreement to a payment plan for unpaid tolls, civil penalties, and administrative
fees, § 46.2-819.3:1(K) requires the court or the toll facility operator to report the offender's failure to pay
to DMV for purposes of withholding vehicle registration and license plate issuance for the vehicle driven
in commission of the offense.
With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. You relate that a Commonwealth's Attorney has declined to undertake, or contract for, the collection of unpaid judgments for toll violations where the toll facility is operated by a private facility. Specifically, your questions concern judgments for civil penalties, unpaid tolls, administrative fees, and costs under § 46.2-819.3:1 of the Code of Virginia. Accordingly, this Opinion is limited to the collection of judgments under § 46.2-819.3:1 for toll violations occurring at private toll facilities. For purposes of this Opinion, the term "private toll facility" refers to a facility that is operated by a private entity pursuant to a Comprehensive Agreement with the public owner as permitted by the Virginia Public-Private Transportation Act of 1995; a facility that is operated by a private entity pursuant to the Virginia Highway Corporation Act of 1988; or a facility that is owned and operated outright by a private entity.
2. See VA. CODE ANN. §§ 46.2-819.1 (2017) (applicable to toll facilities with manual toll collection and photo-monitoring or automatic vehicle identification systems), 46.2-819.3 (2017) (applicable to toll facilities with manual toll collection), and 46.2-819.3:1 (2017) (applicable to all-electronic toll facilities). The first conviction under the civil penalty statutes is subject to a limit of $2,200, "regardless of the total number of offenses the operator or owner of a vehicle is convicted of on that date." VA. CODE ANN. §§ 46.2-819.1(E), -819.3(O), and -819.3:1(E). In addition, the toll facility operator must be able to demonstrate that there was an attempt to collect the unpaid tolls and administrative fees through "debt collection" not less than 30 days prior to commencing the court action for civil penalties and that at least 120 days have lapsed since the unpaid toll. For purposes of the civil penalty statutes, "debt collection" means "the collection of unpaid tolls and applicable administrative fees by (i) retention of a third-party debt collector or (ii) collection practices undertaken by employees of a toll facility operator that are materially similar to a third-party debt collector." VA. CODE ANN. §§ 46.2-819.1(A), -819.3(A), and -819.3:1(A).
3. VA. CODE ANN. § 19.2-349 (Supp. 2018).
4. Section 19.2-349 does not mention "unpaid tolls" or "administrative fees," which are included in a judgment rendered under §§ 46.2-819.1, -819.3, or -819.3:1.
5. Section 46.2-819.3:1 is not specific as to who is responsible for collection of the judgment if not paid to the court. It may be inferred that the toll facility operator is the responsible party because it is authorized to issue the civil penalty summons (§ 46.2-819.3:1(F) & (G)); settle the action in exchange for payment of the unpaid toll, administrative fees, and a reduced civil penalty prior to the hearing date (§ 46.2-819.3:1(O)); and notify the Commissioner of the DMV if the penalties, unpaid tolls, and fees are not paid by a person found by the court to have two or more unpaid tolls (§ 46.2-819.3:1(K)). Additionally, § 8.01-427 provides that "persons entitled to the benefit of any decree or order requiring the payment of money shall be deemed judgment creditors, although the money be required to be paid into a court ...."
6. VEPCO v. Citizens for Safe Power, 222 Va. 866, 869, 284 S.E.2d 613, 615 (1981); 1996 Op. Va. Att'y Gen. 114, 116.
7. VA. CODE ANN. § 46.2-819.3:1(G).
8. Should the Commonwealth's Attorney decide against collecting a judgment under § 46.2-819.3:1, the private toll facility operator may, as the beneficiary of the court order, collect the judgment under § 8.01-427 of the Code of Virginia. Permitted collection efforts include docketing the judgment (§ 8.01-446), placing a lien on real estate (§ 8.01-458), and securing a writ of fieri facias (§ 8.01-466). Additionally, under specified criteria, the toll facility operator or the court "shall" request the Commissioner of DMV to withhold issuance or renewal of the vehicle's registration certificate or license plate. See § 46.2-819.3:1(K).
9. VA. CODE ANN. § 19.2-341 (Supp. 2018).
10. VA. CODE ANN. § 8.01-426 (2015).
11. Section 19.2-348 permits the clerk of the circuit court to initiate collections on judgments for fines and penalties going wholly or in part to the Commonwealth; however, in the case of civil penalties awarded to a private toll facility operator under § 46.2-819.3:1, such penalties are ultimately paid to the toll facility operator. VA. CODE ANN. § 46.2-819.3:1(J).
12. VA. CODE ANN. § 46.2-819.3:1(G); see also §§ 46.2-819.1(G), -819.3(O).
13. VA. CODE ANN. § 46.2-819.3:1(I) (providing specific requirements for the summons and its means of execution); see also VA. CODE ANN. §§ 46.2-819.1(I); -819.3(I).
14. VA. CODE ANN. § 46.2-819.3:1(I). The preprinted form that the Supreme Court of Virginia has created for this purpose is Form No. DC-285, the "Summons for Toll Road or Designated Access Highway Violation." See SUPREME COURT OF VIRGINIA, District Court Forms Listing, http://www.courts.state.va.us/forms/district/dc_forms_list.pdf (last visited June 20, 2019).
15. This same conclusion would apply to the companion civil penalty statutes, which include similar language regarding the issuance of a summons to initiate the civil penalty action. See §§ 46.2-819.1(I), -819.3(I).
16. VA. CODE ANN. § 46.2-819.3:1(K). Similarly, § 46.2-819.1(J) requires the court to give notice to the Commissioner of DMV if the offender has two or more unpaid tolls, while § 46.2-819.3(K) requires the court to give notice to Commissioner if the offender has three or more unpaid tolls.