The question of whether officers in Virginia have authority to arrest, without a warrant, for misdemeanor criminal offenses is a complicated one which many police officers, lawyers and judges simply do not understand. The analysis requires an assessment of whether the officer can take any action without a warrant, and then, if some action is authorized, an assessment of what that action is.
May an officer arrest someone, without a warrant, for a misdemeanor criminal offense?
Many believe Virginia law allows an officer to arrest any suspect as long as probable cause exists to believe the suspect committed a crime. However, this is not the law in Virginia. To the contrary, although Virginia law authorizes officers to arrest, without a warrant, for misdemeanors committed in their presence, officers may not arrest a suspect, without a warrant, for misdemeanors committed outside of their presence. A few limited exceptions to this general rule are set out in 19.2 and 46.2.
If an officer is authorized to arrest someone for a misdemeanor offense without a warrant, may the officer take the suspect into custody or does Virginia law require the officer to issue a summons and release the suspect?
If the misdemeanor offense was committed in the officer's presence, the general rule in Virginia is that an officer must issue a summons and release the suspect. If an exception applies authorizing an officer to arrest, without a warrant, for a misdemeanor not committed in the officer's presence, the suspect should be taken into custody.