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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California Cal. Veh. Code § 14601.5(e) Driving with suspended license
In imposing the minimum fine required by subdivision (d), the court shall take into consideration the defendant's ability to pay the fine and may, in the interest of justice, and
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for reasons stated in the record, reduce the amount of that minimum fine to less than the amount otherwise imposed.
Traffic

NA

Before imposition of fine or fee Not provided for Not provided for Yes

Court may waive or reduce fine

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California Gov. Code Sec. 68630 The Judicial Council - Waiver of Court Fees and Cost: Legislative findings and declarations

The Legislature finds and declares all of the following:

(a) That our legal system cannot provide "equal justice under law" unless all persons have access to the courts without regard to

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their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic means to pay those fees.

(b) That fiscal responsibility should be tempered with concern for litigants' rights to access the justice system. The procedure for allowing the poor to use court services without paying ordinary fees must be one that applies rules fairly to similarly situated persons, is accessible to those with limited knowledge of court processes, and does not delay access to court services. The procedure for determining if a litigant may file a lawsuit without paying a fee must not interfere with court access for those without the financial means to do so.

(c) That those who are able to pay court fees should do so, and that courts should be allowed to recover previously waived fees if a litigant has obtained a judgment or substantial settlement.

All

1. Applicant receiving public benefits under one or more of the following programs: Supplemental Security Income (SSI) and State Supplementary Payment (SSP), California Work Opportunity and Responsibility to Kids Act

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(CalWORKs), federal Tribal Temporary Assistance for Needy Families (Tribal TANF) grant program, Supplemental Nutrition Assistance Program, the California Food Assistance Program, County Relief, General Relief (GR), or General Assistance (GA), Cash Assistance Program for Aged, Blind, and Disabled Legal Immigrants (CAPI), In-Home Supportive Services (IHSS), or Medi-Cal. 2. An applicant whose monthly income is 125 percent or less of the current poverty guidelines. 3. An applicant who, as individually determined by the court, cannot pay court fees without using moneys that normally would pay for the common necessaries of life for the applicant and the applicant's family.

Not provided for Not provided for Other Yes

Court can grant an initial fee waiver, require applicant to pay a portion of the fees, require applicant to pay court fees over a period of time, or grant some

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other equitable arrangement.

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California Cal. Gov. Code § 27712(a) Public Defender: Determination of ability to pay for costs of counsel at end of proceedings; Order for payment, and enforcement thereof

(a) In any case in which a party is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the proceedings, or

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upon the withdrawal of the public defender or private counsel, after a hearing on the matter, the court may make a determination of the ability of the party to pay all or a portion of the cost of such legal assistance. Such determination of ability to pay shall only be made after a hearing conducted according to the provisions of Section 987.8 of the Penal Code; except that, in any court where a county financial evaluation officer is available, the court shall order the party to appear before the county financial evaluation officer, who shall make an inquiry into the party’s ability to pay this cost as well as other court-related costs. The party shall have the right to dispute the county financial evaluation officer’s evaluation, in which case he or she shall be entitled to a hearing pursuant to Section 27752. If the party agrees with the county financial evaluation officer’s evaluation, the county financial evaluation officer shall petition the court for an order to that effect. The court may, in its discretion, hold one such additional hearing, or the county financial evaluation officer may hold one such additional evaluation, within six months of the conclusion of the criminal proceedings. If the court determines, or upon petition by the county financial evaluation officer is satisfied, that the party has the ability to pay all or part of the cost, it shall order the party to pay the sum to the county in any installments and manner which it believes reasonable and compatible with the party’s ability to pay. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order shall not be enforced by contempt.The court, or in a county which has a county financial evaluation officer, the board of supervisors, shall adjudge a standard by which to measure the cost of legal assistance provided, which standard shall reflect the actual cost of legal services provided. Appointed counsel shall provide evidence of the services performed pursuant to such standard.

All

NA

Not provided for Not provided for Determined by judge after hearing Yes

Fee may be reduced

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California Cal. Pen. Code § 1202.5(a) Additional fine upon conviction of specified crimes; Disposition of proceeds

(a) In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or

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Section 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution.

All

NA

Not provided for Not provided for Not provided for No

Court my reduce fine

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California Cal. Pen. Code § 273.65(i) Violation of protective order relating to children

(i) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a

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determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support.

All

NA

Not provided for Not provided for Not provided for Yes

In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to

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the victim or court-ordered child support.

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California Cal. Rules of Court 4.335(c) Ability to pay determinations for infraction offenses

(1) The court, on request of a defendant, must consider the defendant’s ability to pay.

(2) A defendant may request an ability-to-pay determination at adjudication, or while the judgment remains unpaid,

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including when a case is delinquent or has been referred to a comprehensive collection program.

3) The court must permit a defendant to make this request by written petition unless the court directs a court appearance. The request must include any information or documentation the defendant wishes the court to consider in connection with the determination. The judicial officer has the discretion to conduct the review on the written record or to order a hearing.

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

Community service; payment plan; waiver or reduction of costs

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California Cal. Pen. Code § 987.8(a)-(c) Determination of assets subject to attachment; Determination and order for payment of costs of counsel; Proceedings; Enforcement

(a) If the court finds that a defendant is entitled to counsel but is unable to employ counsel, the court may hold a hearing or, in its discretion, order the

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defendant to appear before a county officer designated by the court, to determine whether the defendant owns or has an interest in real property or other assets subject to attachment and not otherwise exempt by law. The court may impose a lien on any real property owned by the defendant, or in which the defendant has an interest to the extent permitted by law. The lien shall contain a legal description of the property, shall be recorded with the county recorder in the county or counties in which the property is located, and shall have priority over subsequently recorded liens or encumbrances. The county shall have the right to enforce its lien for the payment of providing legal assistance to an indigent defendant in the same manner as other lienholders by way of attachment, except that a county shall not enforce its lien on a defendant’s principal place of residence pursuant to a writ of execution. No lien shall be effective as against a bona fide purchaser without notice of the lien.

(b) If a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.

(c) (1) If the defendant hires counsel replacing a publicly provided attorney; in which the public defender or appointed counsel was required by the court to proceed with the case after a determination by the public defender that the defendant is not indigent; or, in which the defendant, at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant’s ability to pay as provided in subdivision (b), and may, in its discretion, make other orders as provided in that subdivision.

(2) This subdivision applies to a county only upon the adoption of a resolution by the board of supervisors to that effect.

All

(2) “Ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her,

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and shall include, but not be limited to, all of the following: (A) The defendant's present financial position. (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.

Not provided for Not provided for Not provided for Yes

NA

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California Cal. Pen. Code § 273d(c)(3)(B) Infliction of corporal punishment or injury on child resulting in traumatic condition; Enhancement; Conditions of probation

(B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation

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be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.

Felony

NA

Not provided for Not provided for Not provided for No

If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.

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California Cal. Health & Saf. Code § 11350(c) Offenses Involving Controlled Substances Formerly Classified as Narcotics: Unlawful possession

(c) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this

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section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered:

(1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service.

(2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service.

(3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.

All

NA

Not provided for Not provided for Not provided for Yes

community service

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California Cal. Gov. Code § 29550(d)(2) Criminal Justice Administrative Fees: Imposition of fee

The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee,

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including applicable overhead costs.

All

NA

Not provided for Not provided for Not provided for Yes

NA

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California Cal. Pen. Code § 273.1(e) Treatment program for child abusers on probation

(e) The defendant shall pay for the full costs of the treatment program, including any drug testing. However, the court may waive any portion or all of that financial responsibility upon

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a finding of an inability to pay. Upon the request of the defendant, the court shall hold a hearing to determine the defendant’s ability to pay for the treatment program. At the hearing the court may consider all relevant information, but shall consider the impact of the costs of the treatment program on the defendant’s ability to provide food, clothing, and shelter for the child injured by a violation of Section 273a or 273d. If the court finds that the defendant is unable to pay for any portion of the costs of the treatment program, its reasons for that finding shall be stated on the record. In the event of this finding, the program fees or a portion thereof shall be waived.

All

NA

Not provided for Not provided for Determined by judge after hearing Yes

The program fees or a portion thereof shall be waived.

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California Cal. Pen. Code § 987.4 Liability of minor’s parents for costs of assigned counsel

When the public defender or an assigned counsel represents a person who is a minor in a criminal proceeding, at the expense of a county, the court may order the

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parent or guardian of such minor to reimburse the county for all or any part of such expense, if it determines that the parent or guardian has the ability to pay such expense.

All

NA

Not provided for Not provided for Not provided for Yes

Court may waive or reduce fee

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California Cal. Health & Saf. Code § 11352.5 Offenses Involving Controlled Substances Formerly Classified as Narcotics: Fine in addition to imprisonment for sale of heroin

The court shall impose a fine not exceeding fifty thousand dollars ($50,000), in the absence of a finding that the defendant would be incapable of paying such a fine, in

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addition to any term of imprisonment provided by law for any of the following persons:(1) Any person who is convicted of violating Section 11351 of the Health and Safety Code by possessing for sale 14.25 grams or more of a substance containing heroin. (2) Any person who is convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell 14.25 grams or more of a substance containing heroin. (3) Any person convicted of violating Section 11351 of the Health and Safety Code by possessing heroin for sale or convicted of violating Section 11352 of the Health and Safety Code by selling or offering to sell heroin, and who has one or more prior convictions for violating Section 11351 or Section 11352 of the Health and Safety Code.

All

NA

Not provided for Not provided for Not provided for Yes

Fine may be waived or reduced.

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California Cal. Pen. Code § 987.5(b) Of the Arraignment of the Defendant: Registration fee for defendant represented by appointed counsel; Inability to pay; Ordinance establishing fee

(b) At the time of appointment of counsel by the court, or upon commencement of representation by the public defender, if prior to court appointment, the defendant shall be asked if

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he or she is financially able to pay the registration fee or any portion thereof. If the defendant indicates that he or she is able to pay the fee or a portion thereof, the court or public defender shall make an assessment in accordance with ability to pay. No fee shall be assessed against any defendant who asserts that he or she is unable to pay the fee or any portion thereof. No other inquiry concerning the defendant’s ability to pay shall be made until proceedings are held pursuant to Section 987.8.

Felony

NA

Before imposition of fine or fee Not provided for Other Yes

No fee shall be assessed against any defendant who asserts that he or she is unable to pay the fee or any portion thereof.

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California Cal. Pen. Code § 273.5(i)(2)(B)
Infliction of injury on present or former spouse, present or former cohabitant, present or former fiancé/fiancée, present or former dating partner, or parent of child; Punishment; Conditions of probation; Issuance
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of restraining order

(B) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under this subdivision, the court shall make

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a determination of the defendant’s ability to pay. An order to make payments to a battered women’s shelter shall not be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. If the injury to a person who is married or in a registered domestic partnership is caused in whole or in part by the criminal acts of his or her spouse or domestic partner in violation of this section, the community property may not be used to discharge the liability of the offending spouse or domestic partner for restitution to the injured spouse or domestic partner, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse or domestic partner and dependents, required by this section, until all separate property of the offending spouse or domestic partner is exhausted.

All

NA

Not provided for Not provided for Not provided for Yes

An order to make payments to a battered women’s shelter shall not be made if it would impair the ability of the defendant to pay direct restitution to the victim

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or court-ordered child support.

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California Cal. Pen. Code § 1202.4(d) Restitution; Amount; Hearing and court order; Financial disclosure

(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any

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relevant factors, including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant’s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.

Felony, Misdemeanor

NA

Not provided for Burden on defendant to show inability to pay Other Yes

Court may reduce the fine.

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California Cal. Health & Saf. Code § 11372.7(b) Offenses Involving Controlled Substances Formerly Classified as Narcotics:Drug program fee; Drug program fund

(b)  The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. If the

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court determines that the person has the ability to pay, the court may set the amount to be paid and order the person to pay that sum to the county in a manner that the court believes is reasonable and compatible with the person’s financial ability. In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee.

All

NA

Not provided for Not provided for Not provided for Yes

Fine may be waived or reduced.

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California Cal. Pen. Code § 273.6(i) Punishment for violation of protective order, temporary restraining order, or injunction; Possession of firearm by person prohibited from doing so by protective order

(i) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a

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determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

All

NA

Not provided for Not provided for Not provided for Yes

In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to

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the victim or court-ordered child support.

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California Cal. Pen. Code § 1202.51 Additional fine upon conviction of specified offenses

In any case in which a defendant is convicted of any of the offenses enumerated in Section 372, 373a, 374.3, 374.4, 374.7, or 374.8, the court shall order the defendant

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to pay a fine of one hundred dollars ($100) if the conviction is for an infraction or two hundred dollars ($200) if the conviction is for a misdemeanor, in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be paid and order the defendant to pay that sum to the city or, if not within a city, the county, where the violation occurred, to be used for the city’s or county’s illegal dumping enforcement program. Notwithstanding any other provision of law, no state or county penalty, assessment, fee, or surcharge shall be imposed on the fine ordered under this section.

Misdemeanor

NA

Not provided for Not provided for Not provided for No

Court sets the fine according to ability to pay.

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California Cal. Health & Saf. Code § 11377(b) Offenses Involving Controlled Substances Formerly Classified as Narcotics: Possession

(b) The judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in

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accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.

All

NA

Not provided for Not provided for Not provided for Yes

Fine may be waived or reduced.