Ability to Pay

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State Statute Description/Statute Name Statutory language Level of offense Definition of ability to pay Timeline Burden of proof Method of determination Mandatory Remedies if unable to pay
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Kentucky Ky. Rev. Stat. Ann. § 533.030(2)(l) Conditions of probation and conditional discharge; restitution to victim

(2) When imposing a sentence of probation or conditional discharge, the court may, in addition to any other reasonable condition, require that the defendant:

(l) Submit to periodic testing for the

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use of controlled substances or alcohol, if the defendant's record indicates a controlled substance or alcohol problem, and to pay a reasonable fee, as determined by the court, which fee shall not exceed the actual cost of the test and analysis and shall be paid directly to the agency or agencies responsible for testing and analysis as compensation for the cost of the testing and analysis, as specified by written order of the court, performed under this subsection. For good cause shown, the testing fee may be waived by the court;

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Not provided for

Not provided for Not provided for Determined by judge without hearing No

Fee waived

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Kentucky Ky. Rev. Stat. Ann. § 534.030(2) Fines for felonies

(2) In determining the amount and method of paying a fine for commission of a felony, the court shall consider, among others, the following factors: (a) The defendant's ability to

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pay the amount of the fine; (b) The hardship likely to be imposed on the defendant's dependents by the amount of the fine and the time and method of paying it; (c) The impact the amount of the fine will have on the defendant's ability to make reparation or restitution to the victim; and (d) The amount of the defendant's gain, if any, derived from the commission of the offense.

Felony Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Not specified

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Kentucky Ky. Rev. Stat. Ann. § 510.320(2)-(3),(6) Human immunodeficiency virus testing for defendants accused of certain sexual offenses; results; counseling when test positive; cost; effect of appeal

(2) A defendant charged with an offense pursuant to this chapter which has sexual intercourse or deviate sexual intercourse as an element, or has sexual contact as an element when

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the circumstances of the case demonstrate a possibility of transmission of human immunodeficiency virus, shall upon initial court appearance on the charge, be informed by the judge of the availability of human immunodeficiency virus testing. The judge shall also notify the victim of the offense, or parent or guardian of the victim, that the defendant has been so notified.

(3) When a defendant has been convicted of any offense in subsection (2) of this section, other provisions of law to the contrary notwithstanding, the sentencing court, regardless of any prior human immunodeficiency virus test, shall order the defendant to undergo a human immunodeficiency virus test, under the direction of the Cabinet for Health and Family Services...

(6) The cost of testing under this section shall be paid by the defendant tested, unless the court has determined the defendant to be indigent.

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Indigency

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

Not specified

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Kentucky Ky. Rev. Stat. Ann. § 534.040 Fines for misdemeanors and violations

(4) Fines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.

Misdemeanor

Indigent

Before imposition of fine or fee Not provided for Determined by judge without hearing No Not provided for
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Kentucky Ky. Rev. Stat. Ann. § 23A.208(3) Additional fee for sex crime, stalking, or related inchoate offenses

(3) The court may waive all or any portion of the fee required by this section if the court finds that a person subject to the surcharge is indigent or

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financially unable to pay all or any portion of the surcharge. The court may waive only the portion of the surcharge that the court finds the person is financially unable to pay.

All Not provided for Before imposition of fine or fee Not provided for Determined by judge without hearing No

Waive portion of surcharge.

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West Virginia W. Va. Code § 61-11A-5(a) Restitution; procedure for issuing order

(a) The court, in determining whether to order restitution under this article, and in determining the amount of such restitution, shall consider the amount of the loss sustained by any

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victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such factors as the court deems appropriate.

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… shall consider … the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing Yes

No restitution or lower amount of restitution

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West Virginia W. Va. Code § 62-11A-1a Other sentencing alternatives

(e) A person sentenced under the provisions of this section may be required to pay the costs of his or her incarceration, including meal costs: Provided, That the judge or

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magistrate considers the person's ability to pay the costs.

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Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

May not be required to pay the costs of his or her incarceration, including meal costs.

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West Virginia W. Va. Code § 62-11B-5(7) Requirements for order for home incarceration

(7) A requirement that the offender pay a home incarceration fee set by the circuit court or magistrate. If a magistrate orders home incarceration for an offender, the magistrate shall follow

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a fee schedule established by the supervising circuit judge in setting the home incarceration fee. The magistrate or circuit judge shall consider the person’s ability to pay in determining the imposition and amount of the fee.

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Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

No fee or a lower fee

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West Virginia W. Va. Code § 62-11C-4(b)-(c) Special revenue account

(b) In addition to the fee required in section nine [§ 62-12-9], article twelve of this chapter, a fee not to exceed $35 per month, unless modified by legislative rule as

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provided in section three [§ 62-11C-3] of this article, is also to be collected from those persons on probation. This fee is to be based upon the person’s ability to pay. The magistrate or circuit judge shall conduct a hearing prior to imposition of probation and make a determination on the record that the offender is able to pay the fee without undue hardship. The magistrate clerk, deputy magistrate clerk, magistrate assistant, circuit clerk or deputy circuit clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the magistrate clerk or circuit clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.

(c) In addition to the fee required in section five, article eleven-b of this chapter, a fee of $2.50 per day, unless modified by legislative rule as provided in section three of this article, is to be collected from those persons on home incarceration. The circuit judge, magistrate or municipal court judge shall consider the person's ability to pay in determining the imposition of the fee. The circuit clerk, magistrate clerk, municipal court clerk or his or her designee shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk, magistrate clerk or municipal court clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.

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Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

No fee or lower fee

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West Virginia W. Va. Code § 62-12-26 Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee

(f) The sentencing court may, based upon defendant’s ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed $50 per month. Said fee

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may be modified periodically based upon the defendant’s ability to pay.

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Not provided for

Before imposition of fine or fee Not provided for Determined by judge without hearing Yes

No fee or reduced fee; modification of fee.

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West Virginia W. Va. Code § 61-11A-4(g) Restitution; when ordered

(g) If the defendant is placed on probation or paroled under this article, any restitution ordered under this section shall be a condition of the probation or parole unless the

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court or Parole Board finds restitution to be wholly or partially impractical as set forth in this article.
The court may revoke probation and the Parole Board may revoke parole if the defendant fails to comply with the order.  In determining whether to revoke probation or parole, the court or Parole Board shall consider the defendant's employment status, earning ability, financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay.

All

The defendant's employment status, earning ability, financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability

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to pay.

Before imposition of fine or fee Not provided for Determined by judge without hearing No

Court/Parole Board may choose not to revoke probation or parole.

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West Virginia W. Va. Code § 50-3-2a(c)(1) Payment by credit card or payment plan; suspension of licenses for failure to make payments or appear or respond; restitution; liens

(c)(1) If any costs, fines, fees, forfeitures, restitution or penalties imposed by the magistrate court in a criminal case are not paid within one hundred eighty days from the date of

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judgment and the expiration of any stay of execution, the magistrate court clerk or, upon judgment rendered on appeal, the circuit clerk shall notify the Commissioner of the Division of Motor Vehicles of the failure to pay: Provided, That in a criminal case in which a nonresident of this state is convicted of a motor vehicle violation defined in section three-a [§ 17B-3-3a], article three, chapter seventeen-b of this code, the appropriate clerk shall notify the Division of Motor Vehicles of the failure to pay within eighty days from the date of judgment and expiration of any stay of execution. Upon notice, the Division of Motor Vehicles shall suspend any privilege the person defaulting on payment may have to operate a motor vehicle in this state, including any driver's license issued to the person by the Division of Motor Vehicles, until all costs, fines, fees, forfeitures, restitution or penalties are paid in full. The suspension shall be imposed in accordance with the provisions of section six [§ 17B-3-6], article three, chapter seventeen-b of this code: Provided, That any person who has had his or her license to operate a motor vehicle in this state suspended pursuant to this subsection and his or her failure to pay is based upon inability to pay, may, if he or she is employed on a full- or part-time basis, petition to the circuit court for an order authorizing him or her to operate a motor vehicle solely for employment purposes. Upon a showing satisfactory to the court of inability to pay, employment and compliance with other applicable motor vehicle laws, the court shall issue an order granting relief.

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Not provided for

At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Circuit court may issue an order authorizing the individual to operate a motor vehicle solely for employment purposes.