When a person who put up bail for a traffic ticket fails to appear and the court orders the bail forfeited, does the clerk of court have to report the forfeiture to DMV as a conviction, and does the answer depend on what kind of bond was posted?

Plain-English summary

The AG answered whether forfeiting a surety or mortgage bond after a missed court date counts as a conviction for reporting to the Division of Motor Vehicles (DMV). It also addressed whether clerks should report every DWI bond forfeiture as a conviction. The answer to both questions turns on the bond's form: the cited statutes say "cash," not every kind of bail bond.

N.C.G.S. § 15A-531(1) identifies unsecured bonds and bonds secured by a cash deposit, a mortgage, or a surety. The AG read the specific term "cash bond" in § 20-24.2(b) as cash deposited with the court in the full bond amount by the defendant or another person on the defendant's behalf. It excludes mortgage and surety bonds, even if a court later forfeits the full bail amount from the mortgagor or surety.

For Chapter 20 reporting, § 20-4.01(4a) defines a conviction to include an unvacated forfeiture of cash in the full bond amount. If a court forfeits that cash bond after a motor vehicle defendant fails to appear, the clerk reports a conviction under § 20-24. If a different kind of bond secured the appearance, the clerk reports the failure to appear under § 20-24.2(a); DMV revokes driving privileges until the court reports that the person appeared and complied with its orders.

The opinion explains the reporting distinction. It does not advise defendants to choose a bond type to influence the DMV record.

Currency note

This opinion was issued in 1994. Check the current bond, traffic-reporting, and license-revocation statutes for a present case.

Background and statutory framework

The opinion applies the statutory rule that every word should be given effect. The legislature listed several types of appearance bonds in Chapter 15A but used "cash bond" in § 20-24.2(b) and "forfeiture of cash" in the Chapter 20 conviction definition. The AG concluded those words exclude surety and mortgage bonds from conviction reporting on forfeiture.

Common questions

Does it matter who deposited the cash with the court?

The AG says no for this definition: the defendant or another person may deposit cash on the defendant's behalf, provided the deposit is for the full amount of the bond.

If a surety bond is forfeited, does the clerk report a traffic conviction?

No. The opinion says the clerk reports the missed appearance under § 20-24.2(a), rather than treating the surety forfeiture as a conviction under § 20-24.

Could a defendant choose a noncash bond to avoid a DMV conviction?

The opinion does not discuss or recommend such a choice. It explains that failure to appear on a noncash bond is reported to DMV and leads to license revocation until the court notifies DMV that the person appeared and complied.

Does the answer change for DWI bond forfeitures?

No. In response to a DWI reporting question, the AG says the clerk should report a conviction only when the forfeited bond was the full cash amount deposited by the defendant or another person on the defendant's behalf.

Source

• Landing page: https://ncdoj.gov/opinions/forfeiture-of-cash-bond-clerk-of-court-to-report-convictions-to-division-of-motor-vehicles/

Citations

• N.C. Gen. Stat. §§ 20-4.01(4a), 20-24, 20-24.1, 20-24.2
• N.C. Gen. Stat. §§ 15A-531(1), 15A-534(a)(4)
• N.C. Gen. Stat. § 7A-146
• N.C. Gen. Stat. § 109-25
• N.C. Gen. Stat. § 58-74-5
• HCA Crossroads Residential Centers, Inc. v. N.C. Dep't of Human Resources, 327 N.C. 573, 398 S.E.2d 466 (1990)
• Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981)

Original opinion text

The NCDOJ-published version begins with the statutory excerpt from NCGS 20-24.2 and proceeds with the analysis. Date, addressee, and salutation are not in the public landing-page version.

• (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 determining 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. § 15A-534(a)(4) (1993). The language of these two statutes in Chapter 15A indicates that the legislature recognizes various types of bail bonds or appearance bonds. The three types of secured appearance bonds recognized by the legislature are: (1) cash bond; (2) mortgage bond; and (3) surety bond.

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