Does serving a show cause summons in Virginia count as an arrest that has to be reported to the criminal records exchange?

Plain-English summary

Chesterfield County Sheriff Dennis Proffitt asked whether serving a show cause summons in a criminal case required his office to file an arrest report with Virginia's Central Criminal Records Exchange. AG William Mims said no.

Section 19.2-390 requires sheriffs and other law-enforcement officers to make a CCRE report on "any arrest" for felonies, Title 54.1 offenses, and a defined set of misdemeanors. The whole reporting scheme presupposes that an arrest happened. The Virginia Code distinguishes between two types of process. Section 19.2-76 says a warrant or capias is "executed by the arrest of the accused," but a summons is "executed by delivering a copy to the accused personally." A capias allows the officer to detain and bring the person in; a summons just tells the person to show up.

The Virginia Supreme Court defined an arrest as a person "detained in custody by authority of law or one who is under legal restraint." A show cause order or summons is an instrument of notice, not a charging instrument. It does not put the person in custody or restrict their liberty. Black's Law Dictionary defines the show cause order as one directing a party to appear and explain why some action was or was not taken. Because that is fundamentally different from physical restraint, the AG concluded that serving it does not produce an arrest within the meaning of § 19.2-390, and there is nothing for the sheriff to report to the CCRE. A 1975-76 AG opinion had reached the same conclusion about a related summons context.

Currency note

This opinion was issued in 2009. 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 is a show cause summons?
A: A notice ordering a person to appear in court and explain why the court should or should not grant some relief, or why the person took or failed to take some action. It is most often used when the court already has a matter before it and wants the person to address a contempt-type issue.

Q: How is that different from a capias?
A: A capias is a writ that directs an officer to take a named defendant into custody. A show cause summons does not authorize the officer to detain anyone. The Code reflects this distinction: § 19.2-76 says capias is "executed by the arrest of the accused," and a summons is "executed by delivering a copy to the accused personally."

Q: Why does the CCRE reporting requirement matter?
A: The Central Criminal Records Exchange is Virginia's central criminal-history database. Arrest reports filed there flow into background checks. The AG's interpretation kept show-cause service out of those records.

Q: What if the show cause leads to a contempt finding?
A: That is a separate event from service. The opinion noted in a footnote that a court may, after service and disposal of the underlying matter, find contempt, but the summons itself is not the charging instrument for purposes of triggering arrest-style reporting.

Background and statutory framework

Chapter 7 of Title 19.2 (§§ 19.2-71 to 19.2-83.2) governs arrest procedures in Virginia. Section 19.2-76 spells out the execution difference between capias and summons. Section 19.2-390 covers reporting to the CCRE. The AG also drew on a separate AG opinion from 1975-1976 reading the same arrest-versus-summons line in a different statutory context, and on the Virginia Supreme Court's general definition of arrest as legal restraint.

The opinion's broader principle: statutory triggers tied to "arrest" do not fire when the procedural device used is one that does not produce custody.

Citations

• Va. Code Ann. § 19.2-76 (execution of warrants, capiases, and summonses)
• Va. Code Ann. § 19.2-390 (CCRE arrest reporting)
• Moore v. Commonwealth, 218 Va. 388 (1977) (definition of arrest)
• 1975-1976 Op. Va. Att'y Gen. 13 (summons without detention is not arrest)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-070-Proffitt.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims

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

Attorney General

October 26, 2009

The Honorable Dennis S. Proffitt
Chesterfield County Sheriff
P.O. Box 7
Chesterfield, Virginia 23832

Dear Sheriff Proffitt:

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 § 19.2-390 requires that the sheriff make a report to the Central Criminal Records Exchange ("CCRE") when a show cause summons is served.

Response

It is my opinion that service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390.

Applicable Law and Discussion

Section 19.2-390 provides, in pertinent part, that:

A. 1. Every state official or agency having the power to arrest, the sheriffs of counties, the police officials of cities and towns, and any other local law-enforcement officer or conservator of the peace having the power to arrest for a felony shall make a report to the Central Criminal Records Exchange, on forms provided by it, of any arrest, including those arrests involving the taking into custody of, or service of process upon, any person on charges resulting from an indictment, presentment or information, the arrest on capias or warrant for failure to appear, and the service of a warrant for another jurisdiction, on any of the following charges:
a. Treason;
b. Any felony;
c. Any offense punishable as a misdemeanor under Title 54.1; or
d. Any misdemeanor punishable by confinement in jail (i) under Title 18.2 or 19.2, except an arrest for a violation of § 18.2-119, Article 2 (§ 18.2-415 et seq.) of Chapter 9 of Title 18.2, or any similar ordinance of any county, city or town, (ii) under § 20-61, or (iii) under § 16.1-253.2.

The reports shall contain such information as is required by the Exchange and shall be accompanied by fingerprints of the individual arrested. [Emphasis added.]

Section 19.2-390(A)(1) does not explicitly mention a show cause summons. Therefore, the issue is whether the service of a show cause summons qualifies as an "arrest" within the meaning of § 19.2-390. Chapter 7 of Title 19.2, §§ 19.2-71 through 19.2-83.2, governs the procedures for arrest in the Commonwealth. Section 19.2-76 provides that "[a] warrant or capias shall be executed by the arrest of the accused, and a summons shall be executed by delivering a copy to the accused personally." (Emphasis added.) Thus, there is a distinction between a warrant or capias and a summons. The Supreme Court of Virginia has held that an arrest involves "a person who is detained in custody by authority of law or one who is under legal restraint."[1] Therefore, it is my opinion that for purposes of § 19.2-390, an arrest would mean that a person would be subject to physical restraint, restriction of personal freedom, or detainment for custody.

I find no statutory definition of the term "show cause summons." When a particular word in a statute is not defined in the statute, it will be given its ordinary meaning.[2] A "show cause order" is "[a]n order directing a party to appear in court and explain why the party took (or failed to take) some action or why the court should or should not grant some relief. — Also termed order to show cause; rule to show cause, show-cause rule."[3] Further, the term "rule to show cause" means "[an] expedited proceeding on a show-cause order. — Also termed rule to show cause[.]"[4] A "summons" is "[a] notice requiring a person to appear in court."[5] Based on these definitions, a show cause order or summons is an instrument of notice and not a charging instrument.[6] Being an instrument of notice, the specific purpose of a show cause order or summons is to notify and command that a respondent appear before the court to answer questions stemming from a matter that is or has been already before the court.[7] While a capias and a show cause summons both are used to bring a person before the court, the capias includes an ability to detain and seize while the show cause summons does not.[8]

Finally, a prior opinion of the Attorney General has concluded that where an accused has merely been served with a summons, without being detained, there has been no arrest and no requirement to make an arrest report to CCRE.[9] Thus, service of a show cause summons is not an arrest for purposes of § 19.2-390.

Conclusion

Accordingly, it is my opinion that service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. Moore v. Commonwealth, 218 Va. 388, 394, 237 S.E.2d 187, 192 (1977) (interpreting meaning of "arrested" in context of § 19.1-163.1; noting that person whose freedom of movement and liberty is not subject to legal restriction is not person who is arrested); see also 1972-1973 Op. Va. Att'y Gen. 266, 267 (noting that arrest means to deprive person of liberty by legal authority; taking person into custody for purpose of holding or detaining him to answer criminal charge).
2. See McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970). "[W]ords in common use must be given their plain and natural meaning in the absence of any showing that such words were used in any other then their usual and ordinary sense." McClung v. County of Henrico, 200 Va. 870, 875, 108 S.E.2d 513, 516 (1959); see also Roller v. Shaver, 178 Va. 467, 472, 17 S.E.2d 419, 422 (1941) (noting that words and phrases should be given usual and ordinary meaning).
3. BLACK'S LAW DICTIONARY 1207 (9th ed. 2009).
4. Id. at 1505; see also id. at 1450 (referring to "show-cause proceeding" for definition of "rule to show cause").
5. Id. at 1574.
6. Although a judge may, after the service of a show cause summons and disposal of the immediate matter, find contempt, it is not considered to be the charging instrument.
7. See supra notes 3-5 and accompanying text. A show cause order or summons is also distinct from a capias, which is "[a]ny of various types of writs that require an officer to take a named defendant into custody." BLACK'S LAW DICTIONARY, supra note 3, at 236 (emphasis added).
8. See generally VA. CODE ANN. § 18.2-271.1(F) (2009) (providing that show cause is served by mailing to last known address); VA. CODE ANN. § 19.2-76 (2008) (providing that capias is executed by arrest of accused while summons is executed by delivering copy to accused); see also § 19.2-390(A)(2) (delaying requirement to report to CCRE certain violations or misdemeanors of persons arrested and released on summons issued and served in place of warrant until final outcome of charge).
9. See 1975-1976 Op. Va. Att'y Gen. 13, 15 (interpreting CCRE reporting requirement in context of summons issued pursuant to § 19.2-73).