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Under Virginia Criminal Law, if I am arrested will I be taken into custody or released on a summons.

You may have already read the article addressing the Authority of Police to Arrest Without a Warrant in Virginia.  This article addresses the next step in the process.  Assuming that Virginia law enforcement officials have probable cause to arrest a suspect, and that Virginia law authorizes the arrest of the suspect without a warrant - what does Virginia law say about how the arrest is to be carried out?  Does Virginia law require the suspect be taken into custody or given a ticket (Virginia Uniform Summons) and released? 

The rule in Virginia for felony criminal offenses is easy: if you are arrested for a felony criminal offense in Virginia, you will be taken into custody.  

However, the rules in Virginia for misdemeanor criminal offenses are not so easy. 

If the person is suspected of committing a misdemeanor criminal offense in Virginia and the alleged offense was committed in the presence of the officer, Virginia law requires the officer to issue a Virginia Uniform Summons and release the suspect from custody.  However, the officer will take the suspect into custody in Virginia if the suspect:

- refuses to promise to appear in court in Virginia by signing the Virginia Uniform Summons
- fails or refuses to discontinue the unlawful act in Virginia
- is likely to cause harm to himself or another  
- is believed likely to disregard the Virginia Uniform Summons (if a Class 1 or Class 2 misdemeanor)
- is suspected of being intoxicated in public
- is suspected of committing the offense of Unlawful Assembly

See Section 19.2-74 of Virginia Criminal Procedure set out below.  

The knowledgeable, experienced and successful Virginia Criminal Defense Lawyers of The Wilson Law Firm can discuss this and other matters of Virginia criminal law with you in more detail.  

§ 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special policemen and conservators of the peace.

A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or § 18.2-266, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person 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. 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. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.

2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388, the arresting officer shall take the name and address of such person 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. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

3. Any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.) of this title. Reports to the Central Criminal Records Exchange concerning such persons shall be made after a disposition of guilt is entered as provided for in § 19.2-390.

Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82.

Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128, regardless of the disposition of, and in addition to, the charge upon which he was originally arrested.

Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.

B. Special policemen of the counties as provided in § 15.2-1737, special policemen or conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) of this title and special policemen appointed by authority of a city's charter may issue summonses pursuant to this section, if such officers are in uniform, or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.

C. The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2-388.

(Code 1950, § 19.1-92.1; 1973, c. 98; 1974, c. 481; 1975, c. 495; 1976, c. 753; 1978, c. 500; 1979, cc. 679, 680; 1980, c. 492; 1981, c. 382; 1982, cc. 485, 500; 1984, c. 24; 1988, c. 455; 1995, c. 471.) 
  


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9300 Grant Ave, Suite 301
Manassas, VA 20110-5073
Phone: (703) 361-6100
(540) 347-4944
Fax: (703) 365-7988
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The Wilson Law Firm
9300 Grant Ave, Suite 301
Manassas, VA 20110-5073

Phone: (703) 361-6100
(540) 347-4944
   
Fax: (703) 365-7988

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