Forfeiture of Cash Bond; Clerk of Court to Report Convictions to Division of Motor Vehicles

December 8, 1994

Mr. David B. Brantley Clerk of Superior Court Wayne County Courthouse Goldsboro, N.C. COURIER 01-12-10

RE: Advisory Opinion; Forfeiture of Cash Bond; Clerk of Court to Report Convictions to Division of Motor Vehicles; N.C.G.S. §§ 20-24 and 20-24.2.

Dear Mr. Brantley:

We are writing in response to your request for an advisory opinion from our office as to the following question:

Does the term "cash bond" as used in N.C.G.S. § 20-24.2(b) refer only to bonds originally posted by the defendant in cash or does it refer to any bond which is forfeited generating a payment of cash to the court?

N.C.G.S. § 20-24.2 reads as follows:

(a): The court must report to the Division the name of any person charged with a motor vehicle offense under this Chapter who:
(1): Fails to appear to answer the charge as scheduled, unless within 20 days after the scheduled appearance, he either appears in court to answer the charge or disposes of the charge pursuant to

N.C.G.S. § 7A-146; or

(2): Fails to pay a fine, penalty, or costs within 20 days of the date specified in the court’s judgment.
(b): The reporting requirement of this section and the revocation mandated by N.C.G.S. § 20-24.1 do not apply to offenses in which an order of forfeiture of a cash bond is entered and reported to the Division pursuant to N.C.G.S. § 20-24. If an order is sent to the Division by the clerk through clerical mistake or other inadvertence, the clerk’s office that sent the report of noncompliance must withdraw the report and send notice to the Division which shall correct its records accordingly.

N.C.G.S. § 20-24.2 (1993) (Underlining added).

The term "cash bond" is not specifically defined in Chapter 20 or elsewhere in the General Statutes. The term "cash bail" is defined in Black’s Law Dictionary as the "[s]um of money posted by a criminal defendant to insure his presence in court; used in place of surety bond and real estate." Black’s Law Dictionary 196 (5th Ed. 1979). This definition clearly distinguishes cash bond from other types of bond.

The laws governing bail procedures in this state also provide some guidance in det

ermining whether the term "cash bond" should be distinguished from other types of bond.

N.C.G.S. § 15A-531(1) defines "bail bond" as: An undertaking by the principal to appear in court as required upon penalty of forfeiting bail to the State of North Carolina in a stated amount. Bail bonds include an unsecured appearance bond, an appearance bond secured by a cash deposit of the full amount of the bond, an appearance bond secured by a mortgage pursuant to N.C.G.S. § 109-25, and an appearance bond secured by at least one solvent surety.

N.C.G.S. § 15A-531(1) (1993).

In addition, N.C.G.S. § 15A-534, which establishes the procedure for determining conditions on pretrial release, provides that as a condition of pretrial release a judicial official may:

[r]equire the execution of an appearance bond in a specified amount secured by a cash deposit of the full amount of the bond, by a mortgage pursuant to N.C.G.S. § 58-74-5, or by at least one solvent surety.

N.C.G.S.: § 20-24.2(b) specifically refers to "cash bond" rather than the general terms "bail bond" or "appearance bond." A statute "must be construed, if possible, to give meaning and effect to all its provisions." HCA Crossroads Residential Centers, Inc. v. N.C. Dep’t. of Human Resources, 327 N.C. 573, 578, 398 S.E.2d 466, 470 (1990). Also,

[i]t is well established that a statute must be considered as a whole and construed, if

possible, so that none of its .provisions shall be rendered useless or redundant. It is

presumed that the legislature intended each portion to be given full effect and did not

intend any provision to be mere surplusage.

Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981).

Applying these rules of statutory construction, it must be presumed that by using the specific term "cash bond" the legislature intended to distinguish that type of bond from the other types of "bail" or "appearance bonds." Therefore, cash bond as used in N.C.G.S. § 20-24.2(b) refers only to cash deposited by the defendant or another person on defendant’s behalf in the full amount of the bond. Cash bond does not include surety or mortgage bonds, even though the court may ultimately order that the full amount of the bail be forfeited by the surety or mortgagor.

You also requested an advisory opinion on a related question:

Should the clerk of court report all bond forfeitures in DWI cases as convictions?

N.C.G.S. § 20-24(b) requires the clerk of court to send the Division of Motor Vehicles a record of conviction of a violation of a law regulating the operation of a vehicle. For the purposes of Chapter 20 of the General Statutes, the definition of "conviction" includes "[a]n unvacated forfeiture of cash in the full amount of a bond required by Article 26 of Chapter 15A of the General Statutes." N.C.G.S. § 20-4.01(4a)a.3. (1993) (Underlining added).

Again, the legislature specifically refers to a "forfeiture of cash" bonds. If the legislature had intended to include all forfeitures of bail bonds in the definition of conviction under N.C.G.S. § 20-4.01(4a), it presumably would have used the term "forfeiture of bail" rather than "forfeiture of cash" in the full amount of a bond. Therefore, for the purpose of reporting convictions to the Division of Motor Vehicles pursuant to N.C.G.S. § 20-24(b), the clerk of court should report only a forfeiture of bond that was deposited with the court in cash by the defendant or another person on defendant’s behalf in the full amount ordered by the court.

The distinction between cash bonds and other types of bonds is particularly significant because of the different consequences for a person who fails to appear in court where his appearance was secured by a cash bond as compared to any other type of bond. If a person who posted a cash bond fails to appear in court for a motor vehicle offense and the court orders a forfeiture of the cash bond, the clerk of court must report to the Division of Motor Vehicles that the person was convicted of the offense pursuant to N.C.G.S. §§ 20-24.2(b) and 20-24. The conviction is entered on the person’s driving record by the Division and has the same effect for driver license purposes as any other conviction for that offense. If a person fails to appear in court for a motor vehicle offense where his appearance was secured by some type of bond other than a cash bond, the clerk of court must report the person to the Division for his failure to appear pursuant to N.C.G.S. § 20-24.2(a). The Division enters the person’s failure to appear for the offense on his driving record and revokes the person’s driving privilege until the court notifies the Division that the person has appeared and complied with the orders of the court.

Reginald L. Watkins Senior Deputy Attorney General

Bryan E. Beatty

Assistant Attorney General