Can a Virginia prosecutor amend a state police DUI charge to a local ordinance violation?

Plain-English summary

Commonwealth's Attorney Vener of Campbell County asked the AG whether § 46.2-1308 prohibits him from amending a misdemeanor charge to a local ordinance when the arrest was made by a Virginia State Police officer, in cases where the offense charged is from a title other than Title 46.2 (the motor vehicle title).

The AG said no. The restriction only covers Title 46.2 offenses.

Section 46.2-1308 has two paragraphs that matter here:

• First paragraph. Fines from violations of local traffic ordinances (adopted under §§ 46.2-1300 and 46.2-1304) go to the local treasury.
• Second paragraph. When the arrest or summons "is issued by an officer of the Department of State Police or of any other division of the state government, for violation of the motor vehicle laws of the Commonwealth," the offender "shall be charged with and tried for a violation of some provision of this title" (meaning Title 46.2). Fines and forfeitures from those convictions go to the Literary Fund.

The key textual move is "this title." That phrase refers specifically to Title 46.2. The second paragraph's bar against amendment to local ordinances applies only to violations brought under Title 46.2 by state officers.

Section 18.2-266 (DUI) lives in Title 18.2, not Title 46.2. So when a State Police officer arrests someone for DUI under § 18.2-266, the offense charged is in a different title. The § 46.2-1308 restriction does not apply, and the prosecutor retains the discretion to amend to the equivalent local ordinance violation. That keeps the fine in the local treasury (if convicted under the local ordinance) rather than routing it to the Literary Fund.

The AG applied the standard expression-unius canon: when a statute speaks in specific terms (here, "this title" meaning Title 46.2), the omitted terms (other titles) are intentionally excluded from the statute's scope. The legislature could have said "any title" or "any motor-vehicle-related offense"; it did not.

The opinion has real fiscal stakes. Title 46.2 covers most routine traffic violations. Title 18.2 covers DUI, reckless driving in some contexts, hit-and-run, and other more serious offenses. State Police officers make many of those arrests. If the AG had read § 46.2-1308 broadly to cover all state-police motor-vehicle-related arrests, every DUI conviction by State Police would have routed fines to the Literary Fund. The narrow reading lets the prosecutor amend to the local DUI ordinance, keeping the fine local. Whether to amend in a given case remains the prosecutor's choice.

Currency note

This opinion was issued in 2011. 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.

Section 46.2-1308 has been refined over the years, and local DUI ordinances and statewide DUI penalties have continued to evolve. A current prosecutor weighing whether and how to amend a State Police DUI charge should look at the current statute and any newer AG opinions or court decisions.

Common questions

Why would a prosecutor want to amend a state-statute DUI to a local ordinance?

Two main reasons. First, fines stay in the local treasury rather than going to the Literary Fund (a fiscal advantage for the locality). Second, the amended charge may carry different sentencing or collateral consequences that match the prosecutor's case theory.

Does the State Police officer have any say in this?

No. Once the arrest is made and the case is in the prosecutor's hands, charging discretion belongs to the prosecutor. The officer makes the initial charging decision in the field, but the prosecutor controls the final charging instrument.

What does the defendant gain or lose by the amendment?

It depends on the local ordinance. Most local DUI ordinances mirror § 18.2-266 in elements and penalties; the defendant generally faces the same exposure. The court that hears the case and the procedural path may shift modestly, but the substantive consequences usually do not.

What if a local officer made the arrest?

Then § 46.2-1308 is not in play in the first place; the restriction only attaches to state-police or state-government arrests. Local-officer arrests can flow through the local ordinance route from the start.

What if the State Police arrest was for a Title 46.2 motor vehicle offense?

That is exactly what § 46.2-1308 covers. The opinion reads the statute to bar amending a State Police Title 46.2 charge to a local ordinance; the case stays under Title 46.2 and the fines and forfeitures go to the Literary Fund.

Background and statutory framework

The statute at issue:

• Va. Code Ann. § 46.2-1308. Three operative paragraphs:
  • First: fines from local-ordinance enforcement go to the local treasury.
  • Second: State Police or state-government arrests for "violation of the motor vehicle laws" must be charged and tried under "this title" (Title 46.2), and fines go to the Literary Fund.
  • Third: Class 4 misdemeanor penalty for willful failure to comply.

The related authority statutes:

• Va. Code Ann. § 46.2-1300. Local authority to adopt non-conflicting traffic ordinances.
• Va. Code Ann. § 46.2-1304. Related local authority.

The DUI statute:

• Va. Code Ann. § 18.2-266. DUI; lives in Title 18.2 (Crimes and Offenses Generally), not Title 46.2.

The interpretive canons (stated in the opinion without case attribution):

• The mention of one thing in a statute implies the exclusion of another, so the exclusion of all other titles is presumed intentional.
• "The plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction."

The AG's chain:

1. § 46.2-1308's second paragraph requires charging "under this title."
2. "This title" means Title 46.2.
3. § 18.2-266 (DUI) is in Title 18.2.
4. The amendment bar does not reach Title 18.2 offenses.
5. Prosecutor retains discretion to amend a State Police DUI to a local ordinance.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 18.2-266
• Va. Code Ann. § 46.2-1300
• Va. Code Ann. § 46.2-1304
• Va. Code Ann. § 46.2-1308

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-036-vener.pdf

Original opinion text

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

May 13, 2011

The Honorable Neil S. Vener
Commonwealth Attorney for Campbell County
Post Office Box 236
Rustburg, Virginia 24588

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Vener:

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 § 46.2-1308 prohibits a prosecutor from amending a misdemeanor charge to the equivalent municipal ordinance when the arrest or summons was made by an officer of the Department of State Police for offenses found in titles other than Title 46.2 of the Code of Virginia.

Response

It is my opinion that § 46.2-1308 does not prohibit a prosecutor from amending a misdemeanor charge alleging a violation of state law to the equivalent municipal ordinance in the situation where the arrest or summons was issued by an officer of the Department of State Police for offenses found in titles other than Title 46.2.

Applicable Law and Discussion

Title 46.2 of the Code of Virginia addresses laws pertaining to motor vehicles. Section 46.2-1308 provides:

In counties, cities, and towns whose governing bodies adopt the ordinances authorized by §§ 46.2-1300 and 46.2-1304, all fines imposed for violations of such ordinances shall be paid into the county, city or town treasury. Fees shall be disposed of according to law.

In all cases, however, in which the arrest is made or the summons is issued by an officer of the Department of State Police or of any other division of the state government, for violation of the motor vehicle laws of the Commonwealth, the person arrested or summoned shall be charged with and tried for a violation of some provision of this title and all fines and forfeitures collected upon convictions or upon forfeitures of bail of any person so arrested or summoned shall be credited to the Literary Fund.

Willful failure, refusal or neglect to comply with this provision shall constitute a Class 4 misdemeanor and may be grounds for removal of the guilty person from office. Charges for dereliction of the duties here imposed shall be tried by the circuit court of the jurisdiction served by the officer charged with the violation.

The second paragraph of § 46.2-1308 indicates that when officers of the Department of State Police arrest a person or issue a summons for violating the "motor vehicle laws of the Commonwealth," the offender "shall be charged with and tried for a violation under this title . . . and all fines and forfeitures collected upon convictions or upon forfeitures of bail of any person so arrested or summoned shall be credited to the Literary Fund" (Emphasis added.) "[T]his title" refers to Title 46.2 of the Code of Virginia. Section 46.2-1308 thus quite expressly creates a limited exception to the discretion prosecutors otherwise would have to amend a charge and bring it under the provisions of a local ordinance. That exception exists in the situation where the arrest or summons (1) was brought under Title 46.2, and (2) the arrest or summons was "issued by an officer of the Department of State police or any other division of the state government."

Under generally accepted principles of statutory construction, the mention of one thing in a statute implies the exclusion of another. "The plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction." The second paragraph of § 46.2-1308 does not refer to violations contained in other titles of the Code, rather it specifies only that violations of the motor vehicle laws, as enforced by an officer with the Virginia Department of State police, cannot be amended to a code section outside of Title 46.2. Therefore, the exclusion of all other titles is presumed to be intentional. As such, I find no prohibition against amending violations contained in other titles of the Code, such as driving under the influence in violation of § 18.2-266, to a violation under local ordinances.

Conclusion

Accordingly, it is my opinion that § 46.2-1308 does not prohibit a prosecutor from amending a misdemeanor charge alleging a violation of state law to the equivalent municipal ordinance in the situation where the arrest or summons was issued by an officer of the Department of State Police for offenses found in titles other than Title 46.2.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General