If someone steals a blank personal check, forges the accountholder's signature, and cashes it in Virginia, should the prosecutor charge forgery and uttering under § 18.2-170 (Class 4 felony) or § 18.2-172 (Class 5 felony)?

Subject

Forgery or uttering of an accountholder's signature on a stolen, blank personal check falls under Virginia Code § 18.2-172.

Plain-English summary

Lancaster County's Commonwealth's Attorney asked whether a forged signature on a stolen blank personal check, followed by cashing the check, should be charged under § 18.2-170 or § 18.2-172. The AG concluded that § 18.2-172 applies. It is a Class 5 felony provision for forgery or uttering of writings outside §§ 18.2-168 and 18.2-170.

Virginia Code § 18.2-168 concerns certain public records. Virginia Code § 18.2-170, a Class 4 felony provision, concerns forged coins, notes, or bills current by law or usage and notes or bills of banking companies. The AG examined those words in their historical context. He concluded they refer to currency, including historical private banknotes and later Federal Reserve notes. A personal check is not currency, so it falls outside § 18.2-170 and within § 18.2-172's provision for other writings.

The AG said his conclusion accords with his research into current criminal practice: § 18.2-170 is typically used for currency counterfeiting and § 18.2-172 for other instruments, including personal checks.

What this means for you

If you prosecute check forgery

The opinion says the conduct described in the request should be charged under § 18.2-172. It expressly preserves prosecutorial discretion over whether to bring a charge in the first instance.

If you review a criminal charge

The AG distinguishes the currency language of § 18.2-170 from the "other writings" language of § 18.2-172. His conclusion concerns a stolen blank personal check bearing a forged accountholder signature.

Common questions

Why does the distinction matter?
The opinion identifies § 18.2-170 as a Class 4 felony provision and § 18.2-172 as a Class 5 felony provision. It concludes the described check forgery belongs under the latter.

Does the opinion say no prosecutor can decline to charge?
No. It expressly says it does not limit prosecutorial discretion in deciding whether to bring a charge.

Does it decide the treatment of other documents?
No. The issue and conclusion concern a stolen blank personal check and the forged accountholder signature on it.

Background and statutory framework

Virginia Code § 18.2-172 covers the forgery or uttering of a writing not mentioned in §§ 18.2-168 and 18.2-170. The AG excluded the personal check from the public-record provision and from § 18.2-170's currency terms. He relied on the historical use of private banknotes and the later addition of "bill or note" language to § 18.2-170. That analysis led to the conclusion that a personal check is an "other writing" under § 18.2-172.

Citations and references

• Va. Code § 18.2-168 (public records)
• Va. Code § 18.2-170 (currency forgery)
• Va. Code § 18.2-172 (other writings)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/21-075-Spencer-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jason S. Miyares
Attorney General
November 17, 2022

The Honorable Anthony G. Spencer
Commonwealth's Attorney, Lancaster County
Post Office Box 204
Lancaster, Virginia 22503

Dear Mr. Spencer:

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 the forgery of an accountholder's signature on a stolen, blank personal check, as well as the cashing of that check, should be charged as forgery and uttering under § 18.2-172 or § 18.2-170 of the Code of Virginia.

Response

It is my opinion that, because a personal check does not fall within the limited scope of writings covered by § 18.2-168 or § 18.2-170, the forgery of a blank personal check or the uttering of a forged check constitutes a violation of § 18.2-172 and therefore should be charged as such.

Applicable Law and Discussion

Section 18.2-172 of the Code of Virginia provides, in relevant part, that:

If any person forge any writing, other than such as is mentioned in §§ 18.2-168 and 18.2-170, to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony.

By its terms, § 18.2-172 applies to the forgery or uttering of "any writing" other than those mentioned in § 18.2-168 and § 18.2-170. Accordingly, unless the conduct is chargeable under either § 18.2-168 or § 18.2-170, the forging or uttering of a personal check constitutes a Class 5 felony under § 18.2-172.

As you are aware, § 18.2-168 deals with the forgery of certain public records and does not govern the issue you present. More pertinent to your inquiry, § 18.2-170 provides that it shall be a Class 4 felony for any person to:

[F]orge any coin, note or bill current by law or usage in this Commonwealth or any note or bill of a banking company . . . or . . . utter, or attempt to employ as true, or sell, exchange, or deliver, or offer to sell, exchange, or deliver, or receive on sale, exchange, or delivery, with intent to utter or employ, or to have the same uttered or employed as true, any such . . . forged . . . note or bill, [while] knowing it to be so . . . .

Dispositive to your inquiry, therefore, is whether a personal check is a "note or bill of a banking company" or a "note or bill current by law or usage in this Commonwealth," as described in § 18.2-170. I conclude, based on an analysis of the language of these phrases in historical context, that these terms refer to currency, specifically paper money, rather than personal checks and that checks consequently fall outside the scope of § 18.2-170.

The phrase "note or bill of a banking company" first appeared in the statute in the late 1840s, during an era when private banks issued "notes" or "bills" that served as currency in the absence of a uniform national currency. These notes were in the nature of promissory notes payable to the bearer in specie (gold or silver) on demand. They circulated as money prior to the federal government's establishment of a national currency. An examination of nineteenth-century Virginia case law analyzing a predecessor statute to § 18.2-170 confirms that the term "note or bill of a banking company" was understood to refer to these private banknotes.

In the early 1860s, the U.S. Treasury introduced the greenback, the first widely-circulated paper currency in the nation's history. This began a process that eventually would see privately-issued banknotes replaced with a uniform national currency. By 1935, changes in federal law, specifically the creation and development of the Federal Reserve System, effectively left the Federal Reserve note as the nation's sole currency.

The transition from private banknotes to the Federal Reserve note as currency is reflected in the legislative history of § 18.2-170. Prior to 1975, apart from the notes or bills of banking companies, the statute encompassed only "coin current by law or usage in this Commonwealth"; "bill or note" was added to this phrase in 1975, in apparent recognition of the fact that private banknotes had been replaced by Federal Reserve notes. This clarified that, to the extent they were not "note[s] or bill[s] of a banking company," Federal Reserve notes were included within the scope of the statute as "note[s] or bill[s] current by law or usage in the Commonwealth."

The statutory language, when considered as a whole in light of this historical context, demonstrates that § 18.2-170 penalizes the forgery of currency. Because personal checks are not currency, they fall outside the scope of § 18.2-170 and are instead subject to § 18.2-172, which applies to the forgery of "other writings." This understanding comports with current criminal practice in Virginia: my research indicates that, typically, § 18.2-170 is used to prosecute the counterfeiting of currency while § 18.2-172 is used to prosecute the forgery of other instruments, including personal checks.

Conclusion

Based on the foregoing, it is my opinion that the forgery or uttering of an accountholder's signature on a stolen, blank personal check constitutes a violation of § 18.2-172 of the Code of Virginia and should be prosecuted accordingly. Nothing in this opinion, however, is intended to limit the exercise of prosecutorial discretion in determining whether to bring a criminal charge in the first instance.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General