When a Virginia officer is holding someone under a temporary detention order and the person has calmed down, can a family member take over the transport to the mental health facility?
Subject
Whether a law enforcement officer who has taken custody of a person under a Virginia temporary detention order (TDO) must continue to maintain custody until a hospital bed becomes available, or whether transportation responsibility can be transferred to a family member who is willing and able to do so.
Plain-English summary
When a magistrate issues a TDO under Va. Code § 37.2-809, the order names a law enforcement agency to execute it and designates who will transport the person to the temporary detention facility. The default is law enforcement, but § 37.2-810(B) lets the magistrate designate an "alternative transportation provider," which can be a family member, a friend, a community services board representative, a Department of Behavioral Health and Developmental Services contractor, or another trained transportation provider.
Dickenson County Sheriff Fleming wrote with a real-world problem: his deputies often take custody of a person under a TDO when the person is agitated or aggressive, but after several hours the person calms down and no longer needs law-enforcement custody for public safety. Meanwhile, the deputy is tied up waiting for a hospital bed, sometimes for many hours. The sheriff asked: can transportation be transferred at that point to a family member who is willing to stay with the person and take him to the facility when a bed opens up?
AG Miyares concluded yes, but the mechanism is specific. The officer cannot just hand off custody to the family member. The officer must contact the magistrate and request that the TDO's transportation provider be changed. Section 37.2-810(E) authorizes the magistrate to change the transportation provider "at any time prior to the initiation of transportation." If the magistrate finds, based on information from the officer and others, that the proposed alternative provider is available, willing, and able to transport safely, the magistrate should make the change. Then the officer transfers custody to the alternative provider, who maintains custody until the facility takes over.
The AG also addressed a hidden definitional issue. Section 37.2-810(E) says the change can happen before "initiation of transportation," but the statute does not define that phrase. Many TDOs require a medical clearance evaluation at a hospital before the person goes to the temporary detention facility. The AG read "initiation of transportation" to mean the start of transport directly to the temporary detention facility, not the start of transport to an intervening medical clearance hospital. That reading matters because most TDO holds in waiting-for-a-bed scenarios happen at the hospital after medical clearance, and a contrary reading would have foreclosed the family-handoff option in exactly those situations.
What this means for you
If you are a Virginia sheriff or deputy executing a TDO
You can pursue the family-handoff option when (1) the person is no longer presenting a safety risk requiring law-enforcement custody, (2) a willing, available, and capable alternative provider has been identified, and (3) transportation has not yet begun in the direction of the temporary detention facility. Contact the magistrate, explain the situation, and request a change to the TDO.
Have a written process. Train deputies on what information to present to the magistrate (the alternative provider's identity, relationship to the person, ability to maintain custody, ability to transport, vehicle, and route). Some sheriff's offices use a one-page request form that captures all of this and helps standardize the inquiry.
Do not transfer custody before the magistrate makes the change. The statute says you "shall remain in the custody" until the facility accepts the person or the magistrate has changed the transportation provider. An informal handoff to a family member before the magistrate's order can put your deputy in violation of the TDO and put the family member in possession of a person they have no legal authority to hold.
This option is most useful in long waiting periods at emergency rooms while clinicians look for an available bed. That is the scenario where law-enforcement-tied-up costs are highest and where the person has often stabilized enough that family transport is safe.
If you are a Virginia magistrate
When an officer requests a change of transportation provider under § 37.2-810(E), your role is to find whether the alternative provider is available, willing, and able to transport safely. The opinion frames this as something you "should" do when those findings are met, not as a discretionary refusal. The statutory criteria are the test.
Consider information from multiple sources: the petitioner, the community services board or its designee, the local law enforcement agency, the person's treating physician, and the proposed alternative provider. If the treating physician supports the change as safe, that is significant evidence. If the family member is reluctant or unable to maintain custody during the wait, that is grounds to deny.
The AG's reading of "initiation of transportation" gives you authority to make the change at the hospital while medical clearance is happening. That is a workable rule for the typical case.
If you are a family member of someone under a TDO
You may be asked or you may volunteer to take over custody and transportation. Before you agree, understand what it means: you have to stay with the person, maintain custody (meaning the person cannot just leave), and transport the person to the temporary detention facility when a bed opens up, which may be in another county and may not happen for hours.
Speak with the deputy and the clinicians first. Ask whether the person is safe to be with you. Ask whether you have the physical capacity to maintain custody if the person becomes agitated again. Ask what happens if the person tries to leave during the wait.
The transfer is not a release. The person is still under a TDO, with all of its legal effects. If the person becomes a safety risk during the wait, you should call 911 or contact the sheriff's office immediately so law enforcement can resume custody.
If you are a hospital or community services board clinician
This opinion gives you a tool to relieve law-enforcement burden during long ER holds. When you see a person who has stabilized and has supportive family present, you can raise the family-handoff option with the officer. The officer can then contact the magistrate. Your physician's perspective on safety carries weight under § 37.2-810(B).
Document the clinical handoff. If the officer leaves and the family takes over, document the time, the family member's identity and relationship, the clinical assessment of safety, and the plan for facility transfer. That documentation protects everyone if something goes wrong later.
If you are a mental health advocate or policymaker
The opinion is a partial answer to the chronic problem of law-enforcement-as-default-transport in mental health crises. It opens space for family handoffs, but it does not address the larger structural problem (lack of dedicated mental health transport, lack of beds, inconsistent local practice). Advocacy for dedicated alternative transportation providers, like Department of Behavioral Health and Developmental Services contractors and trained community-based providers, would expand the practical use of § 37.2-810 beyond family handoffs.
Common questions
Q: Can the officer just leave the person with the family member without going through the magistrate?
A: No. Section 37.2-809(E) says the person "shall remain in the custody of law enforcement" until the facility accepts custody or the magistrate has formally changed the transportation provider. An informal handoff is not authorized.
Q: What if the magistrate is unavailable or refuses to change the provider?
A: The officer must continue to maintain custody. The magistrate's authority to make the change is permissive but the request mechanism is the only path. Practically, magistrates in Virginia are available 24/7 by phone or video, so unavailability is rare. If a magistrate refuses based on safety concerns, the officer has to comply.
Q: Can the alternative transportation provider be a friend rather than a family member?
A: Yes. Section 37.2-810(B) lists "a family member or friend of the person who is the subject of the temporary detention order" as eligible alternative providers, along with CSB representatives, Department-contracted providers, and other trained providers.
Q: What does "initiation of transportation" mean exactly?
A: The AG read it to mean the start of transport directly to the temporary detention facility, not the start of transport to an intervening medical clearance hospital. So a person waiting in an emergency room for medical clearance can still have transportation changed; the change has to happen before transport from the ER to the temporary detention facility begins.
Q: What if the person becomes agitated again after the family member takes custody?
A: Call 911 or the sheriff's office. The person is still under a TDO. Law enforcement can resume custody if the alternative provider is no longer safe. The family member should not try to physically restrain a deteriorating person; that creates risk for everyone.
Q: Does the alternative provider have legal authority to use force if needed?
A: The statute is silent on the use of force by an alternative transportation provider. As a practical matter, the alternative provider's authority is limited. If physical restraint becomes necessary, law enforcement should be re-engaged.
Q: What happens if the magistrate changes the transportation provider but no bed is available for days?
A: The alternative provider maintains custody until the facility accepts the person. That is a hard ask of a family member. Realistically, the family-handoff option is most useful for hours-long waits, not multi-day waits. For longer waits, the practical answer is usually that the family member cannot maintain custody indefinitely and law enforcement gets re-engaged.
Background and statutory framework
Virginia's TDO process is the front end of the involuntary commitment system. A magistrate issues a TDO under § 37.2-809 upon finding probable cause that the person has a mental illness, presents a substantial likelihood of harm in the near future, needs hospitalization or treatment, and is unwilling or incapable of volunteering. The TDO authorizes detention for up to 72 hours pending a commitment hearing.
Transportation is one of the chronic problems with the system. The default has historically been law enforcement, which is expensive (deputies tied up for hours), stigmatizing (the person is transported in a marked cruiser, sometimes in restraints), and not always optimal for the person's mental state (a frightened person may be more stable in a family vehicle than in police custody).
The General Assembly addressed this in part by expanding § 37.2-810 to allow alternative transportation providers, including family members and friends, when safe. The 2022 Sheriff Fleming opinion clarifies the procedure for switching mid-stream, which had been ambiguous. Before the opinion, some magistrates declined to change provider designation once the TDO had been issued, on the reading that "initiation of transportation" meant any movement at all. The AG's interpretation gives the statute realistic operational scope.
The broader policy debate continues. The Department of Behavioral Health and Developmental Services has been expanding alternative transportation contracts, and Virginia's "Marcus Alert" framework integrates mental health response into some 911 dispatches. The family-handoff path is one tool in a larger toolkit; it works best for relatively short waiting periods and for persons with supportive, capable family.
Citations and references
Statutes:
- Va. Code Ann. § 37.2-809 (TDO issuance)
- Va. Code Ann. § 37.2-810 (transportation provider designation and change)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-047-Fleming-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
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
September 7, 2022
The Honorable Jeremy D. Fleming
Sheriff, Dickenson County
293 Clintwood Main Street
Clintwood, Virginia 24228
Dear Sheriff Fleming:
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 law enforcement officer who has taken custody of a person pursuant to a temporary detention order ("TDO") must continue to maintain custody of the person until accepted by an appropriate facility when the person is not presenting any public safety risk and a family member has agreed to stay with the person and transport him to the temporary detention facility when a bed becomes available.
Response
In my opinion, if a law enforcement officer maintaining custody of a person under a TDO believes that custody and transportation of the person can be accomplished safely by an alternative transportation provider, including a family member, and such an alternative provider has been identified, the officer may contact the magistrate and request that the transportation provider specified in the TDO be changed. The magistrate should change the transportation provider to the identified alternative transportation provider upon finding that the alternative provider is available, willing, and able to provide transportation in a safe manner.
Background
You state that magistrates often specify your law enforcement agency to execute TDOs and provide transportation. At the time TDOs are issued, persons subject to such orders are often aggressive or violent. You relate, however, that individuals frequently become less agitated such that custody by law enforcement is no longer needed to ensure public safety. In those situations, you believe it would be better for the person if the responsibility for custody and transportation to the facility of temporary detention could be transferred to another entity, which would enable your officers to return to their community policing duties.
Applicable Law and Discussion
The primary purpose of the civil commitment process is to protect a person suffering from a mental illness, as well as the public, from harm resulting from the mental illness. When a TDO is issued, the magistrate must specify the law enforcement agency to execute the order and designate a transportation provider. In determining the transportation provider, the magistrate shall consider any request to authorize transportation by an alternative transportation provider when such an alternative provider is identified to him. An alternative transportation provider may be
a person, facility, or agency, including a family member or friend of the person who is the subject of the temporary detention order, a representative of the community services board, an employee of or person providing services pursuant to a contract with the Department [of Behavioral Health and Developmental Services], or other transportation provider with personnel trained to provide transportation in a safe manner.
If the magistrate finds that an alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner, the magistrate shall designate such alternative transportation provider to provide transportation of the person.
In the scenario you present, the magistrate initially determined that law enforcement should execute the TDO and provide transportation. When a magistrate specifies a law enforcement agency to execute a TDO and provide transportation, current law directs that the person shall remain in the custody of law enforcement until custody has been accepted by the temporary detention facility. Code § 37.2-810(E) nevertheless further provides that the magistrate may change the transportation provider specified in a TDO "at any time prior to the initiation of transportation of a person who is the subject of a temporary detention order . . . ." Consequently, a law enforcement officer maintaining custody of a person under a TDO may contact the magistrate and request that the transportation provider specified in the TDO be changed when the officer believes that custody and transportation of the person can be accomplished safely by an alternative transportation provider and such an alternative provider who has agreed to maintain custody and provide transportation, including a family member or friend of the person, has been identified.
If a law enforcement officer makes such a request, the magistrate must consider it. If the magistrate finds, based on information provided by the law enforcement officer or certain others, that the alternative transportation provider is available to provide transportation, willing to provide transportation, and able to provide transportation in a safe manner, the magistrate should change the transportation provider from the law enforcement agency to the alternative transportation provider. If the magistrate changes the transportation provider, the law enforcement agency shall transfer custody of the person to the alternative transportation provider subsequently specified to provide the transportation. The alternative transportation provider must then maintain custody of the person from the time custody is transferred to it until such time as custody is transferred to the temporary detention facility.
The phrase "initiation of transportation" is undefined. Often, a TDO authorizes the transportation provider to take custody of the person where the person is located and, prior to placement at the facility of temporary detention, take the person to a hospital or medical center for a medical clearance evaluation. Although transportation to the hospital or medical center for a medical clearance evaluation could be seen as the "initiation of transportation," it is unlikely that the General Assembly intended to foreclose a change in transportation providers under § 37.2-810(E) during the period a person must wait in the hospital or medical center for a bed to become available at the facility of temporary detention. Thus, for the purposes of § 37.2-810(E), the better interpretation is that "initiation of transportation" begins when the transportation provider commences transport of the individual directly to the facility of temporary detention rather than to an intervening hospital.
Conclusion
For the reasons stated above, it is my opinion that if a law enforcement officer maintaining custody of a person under a TDO believes that custody and transportation of the person can be accomplished safely by an alternative transportation provider and such an alternative provider has been identified, the officer may contact the magistrate and request that the transportation provider specified in the TDO be changed. In considering the request, the magistrate should change the transportation provider to the identified alternative transportation provider upon finding that the alternative provider is available, willing, and able to provide transportation in a safe manner.
With kindest regards, I am,
Very truly yours,
Jason S. Miyares
Attorney General