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

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.

Plain-English summary

Lancaster County's Commonwealth's Attorney asked whether forging an accountholder's signature on a stolen blank check (and then cashing it) should be charged as a Class 4 felony under § 18.2-170 (forgery of "any coin, note or bill current by law or usage" or "note or bill of a banking company") or as a Class 5 felony under § 18.2-172 (the residual "other writings" forgery statute).

The Attorney General's answer was § 18.2-172. The reason involves nineteenth-century banking history. "Note or bill of a banking company" was originally a reference to private banknotes that circulated as currency in the era before a uniform national currency. The 1975 amendment added "note or bill current by law or usage" to capture Federal Reserve notes after private banknotes disappeared. Read in historical context, § 18.2-170 is a counterfeiting statute aimed at currency. Personal checks are not currency: they are negotiable instruments that derive value from the accountholder's promise, not from acceptance as legal tender. So they fall outside § 18.2-170 and into the catch-all forgery provision at § 18.2-172.

What this means for you

For Virginia prosecutors

The opinion concludes that forgery or uttering of a stolen, blank personal check is a Class 5 felony under § 18.2-172, not a Class 4 felony under § 18.2-170, because § 18.2-170 reaches the counterfeiting of currency rather than personal checks. It adds that nothing in it is intended to limit prosecutorial discretion in deciding whether to bring a charge in the first instance.

For Virginia defense counsel

For a client charged under § 18.2-170 for forging or uttering a personal check, the opinion reads § 18.2-170 as a currency-counterfeiting statute that does not reach personal checks, placing that conduct under § 18.2-172. AG opinions are persuasive authority, not binding precedent.

For business owners and individuals

The opinion does not address civil remedies or what a victim should do; it resolves only which criminal statute applies. For a victim, it means the conduct would be charged under § 18.2-172, the lower-class felony, rather than under § 18.2-170.

For police investigators

Under the opinion, the appropriate statutory basis for a forged personal-check case is § 18.2-172, not § 18.2-170. The opinion treats § 18.2-170 as the statute for counterfeit currency.

Common questions

What is the difference between forgery and uttering?

Forgery is the act of falsely making or altering a writing with intent to defraud. Uttering is offering the forged writing as if it were genuine. Both are covered by § 18.2-172 for personal checks.

Why does it matter which statute applies?

The two statutes carry different felony classifications: § 18.2-170 is a Class 4 felony and § 18.2-172 is a Class 5 felony. The classification of the offense, and the punishment that follows from it, turns on which statute applies, so charging the higher-class felony when the lower one governs can be challenged.

Did the General Assembly intend personal checks to fall under § 18.2-170?

The AG concluded no, based on historical context. The "note or bill of a banking company" phrase appeared in the 1840s when private banknotes were the only paper money. The 1975 amendment that added "note or bill current by law or usage" was responding to the disappearance of private banknotes and the dominance of Federal Reserve notes. Throughout, the statute aimed at counterfeit currency, not stolen checks.

What is current Virginia practice?

The opinion states that the AG's research indicated prosecutors typically use § 18.2-170 to prosecute the counterfeiting of currency and § 18.2-172 to prosecute the forgery of other instruments, including personal checks. The reproduced text does not catalog specific cases.

Background and statutory framework

Virginia's forgery scheme as the AG analyzed it:

• § 18.2-168: forgery of public documents (state records, certificates, etc.).
• § 18.2-170: forgery of currency. Class 4 felony. Targeted at counterfeit coin, bills, and Federal Reserve notes (and historically private banknotes).
• § 18.2-172: residual "other writings" forgery. Class 5 felony. Covers personal checks, business checks, deeds, contracts, and similar non-currency writings.

The opinion traces the "note or bill of a banking company" language to the late 1840s, when private banks issued notes that circulated as currency. The 1975 amendment expanded the currency-counterfeiting statute to reach Federal Reserve notes, but did not pull check forgery into it.

The Supreme Court of Virginia in Hawkins v. Commonwealth (2014) and Campbell v. Commonwealth (1993) had recognized that § 18.2-170 targets currency counterfeiting and § 18.2-172 covers other writings, including by quoting the explicit "other than such as is mentioned in §§ 18.2-168 and 18.2-170" language. The opinion is consistent with those precedents.

Citations

• Va. Code Ann. § 2.2-505 (authority for advisory opinions)
• Va. Code Ann. § 18.2-168 (forgery of public documents)
• Va. Code Ann. § 18.2-170 (counterfeit currency; Class 4 felony)
• Va. Code Ann. § 18.2-172 (forgery of other writings; Class 5 felony)
• 1975 Va. Acts chs. 14, 15
• Abramski v. United States, 573 U.S. 169 (2014)
• Jett v. Commonwealth, 59 Va. 933 (1867)
• Cady v. Commonwealth, 51 Va. 776 (1854)
• Hawkins v. Commonwealth, 288 Va. 482 (2014)
• Campbell v. Commonwealth, 246 Va. 174 (1993)
• Boulware v. Newton, 59 Va. 708 (1868)
• People v. Hall, 391 Mich. 175 (1974)
• West Virginia v. Moffit, 230 W. Va. 635 (2013)
• People v. Bedilion, 24 Cal. Rptr. 19 (Cal. Dist. Ct. App. 1962)

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