In a previous post, I wrote about the different types of sureties on a bail bond. As a quick recap, a surety is one who, along with the defendant, is liable for the amount of the bail bond upon forfeiture of bail. Sometimes, for any number of reasons, a surety may wish to be released from the obligation of a bail bond. One of the ways a surety may be relieved from this obligation is by surrendering the defendant. A surety who wishes to surrender a defendant is permitted to physically take the defendant to the sheriff in the county where the defendant was ordered to appear for trial or to the sheriff in the county where the defendant was bonded. G.S. 58-71-20.

A surety may surrender a defendant before the defendant has violated conditions of the bond (pre-breach). A surety also may surrender a defendant after the defendant has violated conditions of the bond (post-breach), for example, when the defendant has failed to appear in court as required. The post explains the laws relevant to the surrender of a defendant by a surety.

Pre-breach

A surety may surrender a defendant at any time before the defendant has violated conditions of the bond. See G.S. 58-71-20. If the defendant is being surrendered pre-breach, then the surety must return the full premium (the amount of money the defendant paid to the bondsman in exchange for executing the bail bond) to the defendant within 72 hours after the surrender. G.S. 58-71-20.

The defendant may be surrendered without the return of premium for the bond if the defendant does any of the following:

• Willfully fails to pay the premium to the surety or willfully fails to make a premium payment under an agreed-upon payment plan.
• Changes his or her address without notifying the surety before the address change.
• Physically hides from the surety.
• Leaves the State without the permission of the surety.
• Violates any order of the court.
• Fails to disclose information or provides false information regarding any failure to appear in court, any previous felony convictions within the past 10 years, or any charges pending in any State or federal court.
• Knowingly provides the surety with incorrect personal identification, or uses a false name or alias. See G.S. 58-71-20.

The language of the statutes surrounding pre-breach surrender suggests that it is a tool used mainly by licensed bond professionals. However, the statutes do not preclude an accommodation bondsman (that is, the family member, friend, or associate who executed the bond) from surrendering a defendant to the sheriff pre-breach.

If the defendant is surrendered pre-breach, the previous conditions of release for which the appearance bond was posted remain in effect. Once the defendant is surrendered, the surety may apply to the clerk to be exonerated from the bond. G.S. 15A-540(a). Where the surety is a licensed professional, the clerk does not have to perform any affirmative act of exoneration. The surety merely removes that bond from their next report of outstanding obligations to the Department of Insurance, and the bond is no longer subject to forfeiture. For a bond posted by an accommodation bondsman, the clerk exonerates the surety by returning or releasing any security actually provided to the court for the bond.

Post-breach

After there has been a breach of the conditions of the bail bond, the surety may physically take the defendant to the sheriff in the charging county or to the sheriff in the county where the defendant was bonded. See G.S. 58-71-20. Alternatively, a surety may surrender a defendant who is already in the custody of any sheriff by appearing in person and informing the sheriff that the surety wishes to surrender the defendant. G.S. 15A-540(b). If the defendant is surrendered post-breach, a judicial official must determine whether the defendant is again entitled to pretrial release and, if so, upon what conditions. G.S. 15A-540(c).

Before surrendering a defendant to a sheriff, the surety must provide the sheriff with a copy of the bail bond, forfeiture, or release order. G.S. 15A-540(b). The surety typically documents the surrender using the AOC-CR-214 form (Surrender Of Defendant By Surety), to be provided to the receiving sheriff. Upon surrender of the defendant, the sheriff must provide a receipt to the surety. G.S. 15A-540(b).

When a defendant fails to appear in court, a judge must order forfeiture of the bond. If a surety surrenders a defendant after the defendant has failed to appear, the surety must also file a motion pursuant to G.S. 15A-544.5 to set aside the bond forfeiture. The surrender of a defendant does not entitle the surety to automatic relief from a forfeiture. The receipt from the sheriff should accompany the motion to set aside the bond forfeiture as evidence of surrender. See G.S. 15A-544.5(b)(3).

Arrest by Surety

At any time (pre-breach or post-breach), a surety on a bail bond may arrest a defendant for the purpose of surrendering the defendant to the sheriff. G.S. 58-71-30. Arrest may be necessary when the defendant cannot be found or when the defendant refuses to cooperate with the surrender. A surety may utilize the services and assistance of any bail agent, professional bondsman, or runner licensed under G.S. 58-71-40 to effect the arrest or surrender of a defendant. G.S. 15A-540(d).

This statutory right of arrest does not create a law enforcement officer in the person of a bail bondsman. State v. Mathis, 349 N.C. 503, 515 (1998). As such, a bail bondsman is not exempt from statutes regulating the possession of firearms in certain locations (See State v. Haskins, 160 N.C. App. 349 (2003)), nor is a bail bondsman authorized to violate the motor vehicle laws to make an arrest, such as by engaging in a high-speed chase with a defendant. (See State v. McGee, 234 N.C. App. 285 (2014)). Because a bail bondsman is not a law enforcement officer, a bondsman has no obligation to Mirandize a defendant before an arrest, and statements made by the defendant to the bondsman without the benefit of Miranda warnings are admissible in evidence. State v. Perry, 50 N.C. App. 540 (1981).

For purposes of arrest, a surety has the authority and the contractual right to break and enter the defendant’s residence and to use the force reasonably necessary to apprehend him. Mathis at 515. That contractual authority is not, however, extended to cases where a surety is seeking the defendant in the home of a third party where the defendant does not reside. Id. at 513. In those cases, the surety must first have the consent of the homeowner to enter the premises and conduct a search. Id. Additionally, sureties or their agents may use force to overcome the resistance of a third party who attempts to impede the arrest of the defendant, but the force must be reasonably necessary under the circumstances to accomplish the arrest. Id. at 514.

Alternatively, a surety may request that a judicial official issue an order for the arrest of a defendant (see G.S. 58-71-30), which appears to be within the judicial official’s authority only after the defendant has failed to appear. G.S. 15A-305(2).