Can a Virginia Commonwealth's attorney represent a toll road operator chasing drivers for unpaid tolls?

Plain-English summary

Loudoun County Commonwealth's Attorney James Plowman asked whether his office could represent a toll facility operator (the Dulles Greenway, a private toll road) in court actions seeking unpaid tolls, administrative fees, and civil penalties under §§ 46.2-819.1 and 46.2-819.3. AG Cuccinelli answered no.

Two strands of reasoning supported the answer. The first looked at what a Commonwealth's attorney is. The position is a constitutional office whose duties are prescribed by law, and the primary duty is prosecuting crimes. Commonwealth's attorneys must prosecute felonies and may prosecute serious misdemeanors. They may also handle other duties "not inconsistent with [the] office" that the local governing body requests. In larger jurisdictions, they cannot engage in private legal work at all. Representing a private toll operator looked a lot like private practice.

The second strand looked at the statutes. Unpaid-toll actions under §§ 46.2-819.1 and 46.2-819.3 are traffic infractions, not crimes with jail exposure. The General Assembly knew how to assign Commonwealth's attorneys to civil cases when it wanted to. Section 46.2-1133(7) (vehicle weight violations) directly says, "The attorney for the Commonwealth shall represent the interests of the Commonwealth." Other statutes (consumer protection, HIV-test confidentiality, tobacco sales to minors) similarly conscript Commonwealth's attorneys for civil penalty work. None of those provisions appears in the toll-enforcement statutes, so the Cuccinelli administration read that silence as the legislature's intentional choice to leave toll enforcement to the operator's own counsel.

Currency note

This opinion was issued in 2009 (released February 2010). 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.

Common questions

Q: What does a Virginia Commonwealth's attorney typically do?
A: Prosecute felonies in the locality, and prosecute serious misdemeanors at the attorney's discretion. The office is a constitutional office created by Va. Const. art. VII, § 4, with duties prescribed by law.

Q: Can a Commonwealth's attorney handle civil matters at all?
A: Sometimes, when a statute specifically assigns them. The opinion lists examples: vehicle weight violations (§ 46.2-1133(7)), Consumer Protection Act civil penalties (§ 59.1-206(C)), tobacco-to-minors civil penalties (§ 18.2-371.2(D)), HIV-test confidentiality civil penalties (§ 32.1-36.1(B)).

Q: Why couldn't the office help the toll operator anyway?
A: Because the Dulles Greenway is a private entity, and § 15.2-1628 bars Commonwealth's attorneys in cities or counties above a certain population from private practice. Representing a private business in court would conflict with that bar.

Q: Are the toll violations civil or criminal?
A: The opinion treated them as traffic infractions, which are not felonies or misdemeanors and carry no jail time under § 46.2-113. The civil-penalty character was central to why the General Assembly's silence on Commonwealth's attorney involvement mattered.

Background and statutory framework

A Commonwealth's attorney's authority comes from Va. Const. art. VII, § 4 and Title 15.2, Chapter 16 of the Code. Section 15.2-1627(B) lists the prosecution duties. Section 15.2-1626 permits other duties requested by the governing body that are not inconsistent with the office. Section 15.2-1628 prohibits private practice in larger localities. Toll-enforcement authority sits in Title 46.2 of the Code (motor vehicles). Section 46.2-819.1 authorizes photo monitoring; § 46.2-819.3 covers non-photo enforcement. Both lay out administrative fees and civil penalties.

The AG also leaned on a familiar canon of construction: the General Assembly's specific assignment of Commonwealth's attorney duties in some civil-penalty statutes implies, by omission, that the office is not so assigned elsewhere.

Citations

• Va. Code Ann. § 15.2-1626 (other duties of Commonwealth's attorney)
• Va. Code Ann. § 15.2-1627(B) (prosecution duties)
• Va. Code Ann. § 15.2-1628 (private practice prohibition)
• Va. Code Ann. § 46.2-819.1 (photo-monitored toll enforcement)
• Va. Code Ann. § 46.2-819.3 (non-photo toll enforcement)
• Va. Code Ann. § 46.2-1133(7) (vehicle weight cases: CW attorney represents Commonwealth)
• Va. Const. art. VII, § 4 (constitutional office of CW attorney)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/09-068-Plowman.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

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

Attorney General

February 16, 2010

The Honorable James E. Plowman
Loudoun County Commonwealth's Attorney
20 East Market Street
Leesburg, Virginia 20176-2809

Dear Mr. Plowman:

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

Issue Presented

You ask whether a Commonwealth's attorney has the authority to represent a toll facility operator in actions brought against vehicle operators or registered owners pursuant to § 46.2-819.1 or § 46.2-819.3 for unpaid tolls, administrative fees, and civil penalties.

Response

It is my opinion that a Commonwealth's attorney has no authority to provide representation for a toll facility operator in actions brought under § 46.2-819.1 or § 46.2-819.3 for unpaid tolls, administrative fees, and civil penalties.

Applicable Law and Discussion

A Commonwealth's attorney is a constitutional officer whose duties are prescribed by law.[1] The primary responsibility of a Commonwealth's attorney is to enforce the criminal laws within his jurisdiction.[2] Specifically, a Commonwealth's attorney shall prosecute felonies and "may in his discretion, prosecute Class 1, 2, and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine."[3] Commonwealth's attorneys also "may perform such other duties, not inconsistent with [the] office, as the governing body may request."[4] In cities or counties of a certain population, Commonwealth's attorneys may not engage in the private practice of law.[5]

Section 46.2-819 provides, in pertinent part, that "[e]xcept for those permitted free use of toll facilities under § 33.1-252, it shall be unlawful for the driver of a motor vehicle to use a toll facility without payment of the specified toll." In § 46.2-819.1(A), the General Assembly has authorized toll facility operators to install photo-monitoring systems to ensure that tolls are paid. Section 46.2-819.1(B) authorizes such operators to collect administrative fees to cover the expenses of collecting unpaid tolls. If a collection matter proceeds to court, the owner or operator of the vehicle is liable for an additional civil penalty.[6] The civil penalty "shall not be deemed a conviction as an operator and shall not be made part of the driving record of the person upon whom such civil penalty is imposed."[7]

Section 46.2-819.3 contains many provisions similar to § 46.2-819.1, but applies to enforcement of tolls where there is no photo-monitoring or automatic vehicle identification system, as described in § 46.2-819.1, or an actual stop by a law enforcement officer at the time of the offense, as covered under § 46.2-819.[8] Violations of §§ 46.2-819.1 and 46.2-819.3 are traffic infractions that carry no possibility of jail time.[9]

First, you relate that the Dulles Greenway is a private entity. Generally, § 15.2-1628 prohibits Commonwealth's attorneys from engaging in the private practice of law. Second, where the General Assembly intends to permit or require that Commonwealth's attorneys provide representation for offenses that do not result in jail time or in civil matters, it knows how to express that intention.[10] For example, § 46.2-1133(7), of the vehicle weight laws, provides that:

An alleged weight violation which is contested shall be tried as a civil case. The attorney for the Commonwealth shall represent the interests of the Commonwealth. The disposition of the case shall be recorded in an appropriate order, a copy of which shall be sent to the Department [of Motor Vehicles] in lieu of any record which may be otherwise required by § 46.2-383. If judgment is for the Commonwealth, payment shall be made to the Department.[11] [Emphasis added.]

I find no similar provision in either § 46.2-819.1 or § 46.2-819.3; thus, the General Assembly has not expressed such an intention. Further, I find no other provision of law that authorizes such representation.

Conclusion

Accordingly, it is my opinion that a Commonwealth's attorney has no authority to provide representation for the toll facility operator in actions brought under § 46.2-819.1 or § 46.2-819.3 for unpaid tolls, administrative fees, and civil penalties.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli
Attorney General

1. See VA. CONST. art. VII, § 4.
2. VA. CODE ANN. §§ 15.2-528, 15.2-1626, 15.2-1627 (2008).
3. Section 15.2-1627(B).
4. Section 15.2-1626.
5. Section 15.2-1628 (2008).
6. See VA. CODE ANN. § 46.2-819.1(C) (Supp. 2009).
7. Section 46.2-819.1(J).
8. Since § 46.2-819.3 is similar § 46.2-819.1, I have not set out the pertinent portions of § 46.2-819.3 in this opinion.
9. See § 46.2-100 (Supp. 2009) (defining "traffic infraction" as "violation of law punishable as provided in § 46.2-113, which is neither a felony nor a misdemeanor"); § 46.2-113 (2008) (providing that violations of Title 46.2 "constitute traffic infractions" that "[u]nless otherwise stated" are "punishable by a fine of not more than that provided for a Class 4 misdemeanor").
10. See 2004 Op. Va. Att'y Gen. 68, 71 n.16 and opinions cited therein (noting that when General Assembly intends statute to impose requirements, it knows how to express its intention).
11. See also, e.g., VA. CODE ANN. § 18.2-371.2(D) (2009) (authorizing Commonwealth's attorneys to recover civil penalty for violations of, among other things, prohibition on sale of tobacco to minors); VA. CODE ANN. § 32.1-36.1(B) (2009) (providing that Commonwealth's attorney may recover civil penalty for violation of confidentiality of tests to determine infection with human immunodeficiency virus); VA. CODE ANN. § 59.1-206(C) (Supp. 2009) (authorizing Commonwealth's attorneys to recover civil penalties for violations of Virginia Consumer Protection Act).