Code of Virginia

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Code of Virginia
Title 46.2. Motor Vehicles
Chapter 8. Regulation of Traffic
11/29/2021

Article 17. Legal Procedures and Requirements.

§ 46.2-936. 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.

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.

§ 46.2-937. Traffic infractions treated as misdemeanors for arrest purposes.

For purposes of arrest, traffic infractions shall be treated as misdemeanors. Except as otherwise provided by this title, the authority and duties of arresting officers shall be the same for traffic infractions as for misdemeanors.

1977, c. 585, § 46.1-178.01; 1989, c. 727.

§ 46.2-938. Issuance of warrant upon failure to comply with summons; penalties; suspension of licenses for failure to appear.

Upon the failure of any person to comply with the terms of a summons or notice as provided in § 46.2-936, such person shall be guilty of a Class 1 misdemeanor and the court may order a warrant for his arrest. The warrant shall be returnable to the court having jurisdiction of the offense and shall be accompanied by a report by the arresting officer which shall clearly identify the person arrested, specifying the section of the Code of Virginia or ordinance violated, the location of the offense, a description of the motor vehicle and its registration or license number.

If the warrant is returned to the court with the notation "not found" or the person named in the warrant does not appear on the return date thereof, the court shall forward a certificate of the fact of nonservice or nonappearance, with a copy of the report specified in the foregoing provisions of this section, to the Commissioner of the Department of Motor Vehicles, who shall forthwith suspend the driver's license of such person. The order of suspension shall specify the reason for the suspension. Such suspension shall continue until such time as the court has notified the Commissioner that the defendant has appeared before the court under the terms of the summons or notice and the warrant.

1974, c. 372, § 46.1-178.1; 1975, c. 201; 1981, c. 382; 1984, c. 780; 1989, c. 727.

§ 46.2-939. Authority of law-enforcement officers to issue subpoenas.

Local law-enforcement officers and state police officers, in the course of their duties in the investigation of any accident involving a motor vehicle or vehicles, may, at the scene of any such accident, issue a subpoena to any witness to appear in court and testify with respect to any criminal charge brought against any person as a result of such accident. State police officers, additionally, may issue such subpoenas at any other location within seventy-two hours of the time of such accident, with the return of service thereof made to the appropriate court clerk within forty-eight hours after such service. A subpoena so issued shall have the same force and effect as if issued by the court.

Any person failing to appear in response to a subpoena issued as provided in this section shall be punished as provided by law.

1975, c. 138, § 46.1-178.2; 1986, c. 40; 1989, c. 727.

§ 46.2-940. When arresting officer shall take person before issuing authority.

If any person is (i) believed by the arresting officer to have committed a felony or (ii) believed by the arresting officer to be likely to disregard a summons issued under § 46.2-936, the arresting officer shall promptly take him before a magistrate or other issuing authority having jurisdiction and proceed in accordance with the provisions of § 19.2-82. The magistrate or other authority may issue either a summons or warrant as he shall determine proper.

Code 1950, § 46-194; 1958, c. 541, § 46.1-179; 1966, c. 639; 1972, c. 474; 1981, c. 382; 1989, c. 727; 2006, c. 276; 2020, cc. 964, 965; 2021, Sp. Sess. I, c. 338.

§ 46.2-941. Conditions precedent to issuance of summons for violation of parking ordinance; notice.

Before any summons shall be issued for the prosecution of a violation of an ordinance of any county, city, or town regulating parking, the violator shall have been first notified by mail at his last known address or at the address shown for such violator on the records of the Department of Motor Vehicles, that he may pay the fine provided by law for such violation, within five days of receipt of such notice, and the authorized person issuing such summons shall be notified that the violator has failed to pay such fine within such time. The notice to the violator, required by the provisions of this section, shall be contained in an envelope bearing the words "Law-Enforcement Notice" stamped or printed on the face thereof in all capital letters, bold face type, no smaller than the print type size used for the primary address on the envelope. If "window" envelopes are used, the words "Law-Enforcement Notice" shall be clearly visible through the window of the envelope.

1968, c. 388, § 46.1-179.01; 1970, c. 510; 1978, c. 194; 1983, c. 329; 1989, c. 727; 1999, cc. 291, 323; 2002, c. 102.

§ 46.2-942. Admissibility of results of speedometer test in prosecution for exceeding speed limit.

In the trial of any person charged with exceeding any maximum speed limit in the Commonwealth, the court shall receive as evidence a sworn report of the results of a calibration test of the accuracy of the speedometer in the motor vehicle operated by the defendant or the arresting officer at the time of the alleged offense. The report shall be considered by the court or jury in both determining guilt or innocence and in fixing punishment.

1966, c. 687, § 46.1-193.1; 1970, c. 11; 1975, c. 202; 1989, c. 727.

§ 46.2-943. Court or jury may consider defendant's prior traffic record before sentencing.

The term "traffic offense" when used in this section shall mean any moving traffic violation described or enumerated in subdivisions A 1 and 2 of § 46.2-382, whether such violation was committed within or outside the Commonwealth according to the records of the Department of Motor Vehicles.

The term "prior traffic record" when used in this section shall mean the record of prior suspensions and revocations of a driver's license, and the record of prior convictions of traffic offenses described in the foregoing provisions of this section.

When any person is found guilty of a traffic offense, the court or jury trying the case may consider the prior traffic record of the defendant before imposing sentence as provided by law. After the prior traffic record of the defendant has been introduced, the defendant shall be afforded an opportunity to present evidence limited to showing the nature of his prior convictions, suspensions, and revocations.

1975, c. 577, §§ 46.1-347.1, 46.1-347.2; 1984, c. 780; 1989, c. 727.