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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Montana Mont. Code Ann. § 3-1-317(2) User surcharge for court information technology -- exception
If a court determines that a defendant in a criminal case or determines pursuant to 25-10-404 that a party in a civil case is unable to pay the surcharge, the
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court may waive payment of the surcharge imposed by this section.
All Not provided for Not provided for Not provided for Not provided for No

Waive surcharge

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Montana Mont. Code Ann. § 3-1-318(2) Surcharges upon certain criminal convictions -- exception
A court may not waive payment of the surcharge unless the court determines that the defendant is unable to pay the surcharge. Inability to pay must be supported by a
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sworn statement from the defendant demonstrating financial inability to pay without substantial hardship in providing for personal or family necessities. The statement is not admissible in the proceeding unless offered for impeachment purposes and is not admissible in a subsequent prosecution for perjury or false swearing.
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Financial inability to pay without substantial hardship in providing for personal or family necessities

Not provided for Burden on defendant to show inability to pay Not provided for No

Waive surcharge

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Montana Mont. Code Ann. § 45-6-101(2) Criminal Mischief
A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and
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amount of restitution after full consideration of the convicted person's ability to pay the restitution.
All Not provided for Before imposition of fine or fee Not provided for Not provided for No

Determine amount of restitution accordingly.

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Montana Mont. Code Ann. § 45-6-101(2) Criminal Mischief
Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered
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must be made prior to the release of state jurisdiction over the person convicted
All Not provided for At defendant's request at enforcement Burden on defendant to show inability to pay Not provided for No

Modify previous order specifying the amount and manner of restitution.

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Montana Mont. Code Ann. § 46-18-241(3) Condition of Restitution
 If at any time the court finds that, because of circumstances beyond the offender's control, the offender is not able to pay any restitution, the court may order the offender
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to perform community service during the time that the offender is unable to pay. The offender must be given a credit against restitution due at the rate of the hours of community service times the state minimum wage in effect at the time that the community service is performed.
All Not provided for Not provided for Not provided for Not provided for No

Community service payable against restitution owed in amount equal to the minimum wage for each hour worked.

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Montana Mont. Code Ann. § 45-5-206(5) Partner or Family Member Assault -- Penalty
In addition to any sentence imposed under subsections (3) and (4), after determining the financial resources and future ability of the offender to pay restitution as provided for in 46-18-242,
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the court shall require the offender, if able, to pay the victim's reasonable actual medical, housing, wage loss, and counseling costs.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-206(6) Partner or Family Member Assault -- Penalty
In addition to the requirements of subsection (5), if financially able, the offender must be ordered to pay for the costs of the offender's probation, if probation is ordered by
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the court.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-503(5) Sexual intercourse without consent
In addition to any sentence imposed under subsection (2) or (3), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242, the
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court shall require the offender, if able, to pay the victim's reasonable medical and counseling costs that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Lower restitution amounts or alternative forms of restitution may be available

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Montana Mont. Code Ann. § 45-5-507(6) Incest
In addition to any sentence imposed under subsection (3), (4), or (5), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242,
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the court shall require the offender, if able, to pay the victim's reasonable costs of counseling that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Lower restitution amounts or alternative forms of restitution may be available

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Montana Mont. Code Ann. § 45-5-621(3) Nonsupport
If a defense to the charge of nonsupport is inability to pay, the person's inability must be the result of circumstances over which the person had no control. In determining
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ability to pay, after an allowance for the person's minimal subsistence needs, the support of a spouse, child, or other dependent has priority over any other obligations of the person.
Misdemeanor, Felony Not provided for Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

This is a defense in a nonpayment case

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Montana Mont. Code Ann. § 45-5-621(13) Nonsupport
The court may order that a term of imprisonment imposed under this section be served in another facility made available by the county and approved by the sentencing court. The
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offender, if financially able, shall bear the expense of the imprisonment.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

No payment of fee

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Montana Mont. Code Ann. § 45-5-627(4) Ritual abuse of minor--exceptions--penalty
In addition to any sentence imposed under subsection (3), after determining pursuant to 46-18-242 the financial resources and future ability of the offender to pay restitution, the court shall require
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the offender, if able, to pay the victim's reasonable costs of counseling that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Lower restitution amounts or alternative forms of restitution may be available

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Montana Mont. Code Ann. § 45-6-101(2) Criminal Mischief
A person convicted of criminal mischief must be ordered to make restitution in an amount and manner to be set by the court. The court shall determine the manner and
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amount of restitution after full consideration of the convicted person's ability to pay the restitution. Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered must be made prior to the release of state jurisdiction over the person convicted.
Misdemeanor Not provided for Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Determine amount of restitution accordingly.

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Montana Mont. Code Ann. § 45-9-102(5)(c)(ii) Criminal possession of dangerous drugs
The court shall, as conditions of probation pursuant to subsection (5)(a), order: (ii) payment of the costs of imprisonment, probation, and any methamphetamine treatment by the person if the person
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is financially able to pay those costs
Felony Not provided for Before imposition of fine or fee Not provided for Not provided for Yes

Waive or reduce fee

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Montana Mont. Code Ann. § 46-1-1112(2) Funding [of drug treatment courts]
A drug offender shall pay the total cost or a reasonable portion of the cost to participate. The cost paid by a drug offender may not exceed $300 a month.
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The costs assessed must be compensatory and not punitive in nature and must take into account the drug offender's ability to pay. Upon a showing of indigency, the drug treatment court may reduce or waive costs under this subsection (2).
Misdemeanor

Indigency

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Waive or reduce fee

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Montana Mont. Code Ann. § 46-1-1212(2) Funding [of mental health treatment courts]
A participant shall pay the total cost or a reasonable portion of the cost to participate. The cost paid by a participant may not exceed $300 a month. The costs
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assessed must be compensatory and not punitive in nature and must take into account the participant's ability to pay. Upon a showing of indigency, the mental health treatment court may reduce or waive costs under this subsection.
Misdemeanor

Indigency

Before imposition of fine or fee Burden on defendant to show inability to pay Determined by judge after hearing Yes

Waive or reduce fee

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Montana Mont. Code Ann. § 46-8-113 Payment by defendant for assigned counsel--costs to be filed with court
(3) In any proceeding for the determination of whether a defendant is or will be able to pay the costs of counsel, the court shall question the defendant as to
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the defendant's ability to pay those costs and shall inform the defendant that purposely false or misleading statements by the defendant may result in criminal charges against the defendant. (4) The court may not sentence a defendant to pay the costs for assigned counsel unless the defendant is or will be able to pay the costs imposed by subsection (1). The court may find that the defendant is able to pay only a portion of the costs assessed. In determining the amount and method of payment of costs, the court shall take into account the financial resources of the defendant and the nature of the burden that payment of costs will impose. (5) A defendant who has been sentenced to pay costs may at any time petition the court that sentenced the defendant for remission of the payment of costs or of any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs or modify the method of payment.
Misdemeanor Not provided for Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Waive or reduce fee

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Montana Mont. Code Ann. § 46-18-111 Presentence investigation--when required
The defendant shall pay to the department of corrections a $50 fee at the time that the report is completed, unless the court determines that the defendant is not able
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to pay the fee within a reasonable time.
All Not provided for Not provided for Not provided for Not provided for Yes

Waive or reduce fee

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Montana Mont. Code Ann. § 46-18-111 Presentence investigation--when required
The psychosexual evaluation must be made available to the county attorney's office, the defense attorney, the probation and parole officer, and the sentencing judge. All costs related to the evaluation
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must be paid by the defendant. If the defendant is determined by the district court to be indigent, all costs related to the evaluation are the responsibility of the district court and must be paid by the county or the state, or both, under Title 3, chapter 5, part 9. The district court may order subsequent psychosexual evaluations at the request of the county attorney. The requestor of any subsequent psychosexual evaluations is responsible for the cost of the evaluation.
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Indigency

Not provided for Not provided for Not provided for Yes

Waive or reduce fee

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Montana Mont. Code Ann. § 46-18-111 Presentence investigation--when required
The mental health evaluation must be made available to the county attorney's office, the defense attorney, the probation and parole officer, and the sentencing judge. All costs related to the
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evaluation must be paid by the defendant. If the defendant is determined by the district court to be indigent, all costs related to the evaluation are the responsibility of the district court and must be paid by the county or the state, or both, under Title 3, chapter 5, part 9.
All

Indigency

Not provided for Not provided for Not provided for Yes

Waive or reduce fee