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. 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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Delaware 10 Del. C. §8603(a) Nonpayment of Costs

When a defendant who is required to pay the costs of defense defaults in the payment thereof or of any installment, the court on motion of the Attorney General or

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upon its own motion may require the defendant to show cause why the default should not be treated as contempt of court, and may issue a rule or order to show cause why such default should not be treated as contempt of court, and may take such further actions as the court determines to produce the defendant before the court.

All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Additional Time for Payment; Reducing Payment or Installment Amount; Revoking Payment in Whole or Unpaid Part.

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Delaware 10 Del. C. §8603(d) Nonpayment of Costs

If it appears to the satisfaction of the court that the default in the payment of defense costs is not contempt, the court may enter an order allowing the defendant

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additional time for payment, reducing the amount thereof or of each installment, or revoking such payment or the unpaid portion thereof in whole or in part.

All Not provided for At enforcement of fine or fee Burden on defendant to show inability to pay Determined by judge without hearing No

Additional Time for Payment; Reducing Payment or Installment Amount; Revoking Payment in Whole or Unpaid Part.

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Delaware 10 Del. C. §8601(d) Recoupment of Costs

A defendant who has been required to pay the costs of defense and who is not in contumacious default in the payment thereof may at any time petition the court

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for remission of the payment of such costs, or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment.

All

"Will impose manifest hardship on the defendant or immediate family."

At defendant's request at enforcement Burden on defendant to show inability to pay Determined by judge without hearing No

Remission of All or Part of Fee.

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Delaware 10 Del. C. § 8601(c) Recoupment of Costs

The court shall not require a defendant to pay the costs of defense unless the defendant is, or will be, able to pay them. In determining the amount and method

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of payment of such costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

All

"The court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose."

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

Defendant Not Required to Pay.

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California Cal. Health & Saf. Code § 11550(d) Control of Users of Controlled Substances: Addicts

(d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against a person who violates this section, with

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the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant’s ability to pay, and a defendant shall not be denied probation because of his or her inability to pay the fine permitted under this subdivision.

Misdemeanor

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

Not provided for.

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California Cal. Pen. Code § 136.2(a)(1)(G)(i), (iv) Kathy’s Law; Electronic monitoring of defendants accused of domestic violence; Payment for electronic monitoring

(a)(1) Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction

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over a criminal matter may issue orders, including, but not limited to, the following:

(G)(i) An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant. The court or its designee shall transmit orders made under this paragraph to law enforcement personnel within one business day of the issuance, modification, extension, or termination of the order, pursuant to subdivision (a) of Section 6380 of the Family Code. It is the responsibility of the court to transmit the modification, extension, or termination orders made under this paragraph to the same agency that entered the original protective order into the Domestic Violence Restraining Order System.

(iv) A protective order issued under this subparagraph may require the defendant to be placed on electronic monitoring if the local government, with the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy to authorize electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order electronic monitoring to be paid for by the local government that adopted the policy to authorize electronic monitoring. The duration of electronic monitoring shall not exceed one year from the date the order is issued. At no time shall the electronic monitoring be in place if the protective order is not in place.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

The local government that adopted the policy to authorize electronica monitoring pays the fee.

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California Cal. Pen. Code § 136.2(i)(1), (3) Kathy’s Law; Electronic monitoring of defendants accused of domestic violence; Payment for electronic monitoring

(1) In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family

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Code, a violation of subdivision (a) of Section 236.1, Section 261, 261.5, 262, subdivision (a) of Section 266h, or subdivision (a) of Section 266i, a violation of Section 186.22, or a crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of a victim and his or her immediate family.

(3) An order under this subdivision may include provisions for electronic monitoring if the local government, upon receiving the concurrence of the county sheriff or the chief probation officer with jurisdiction, adopts a policy authorizing electronic monitoring of defendants and specifies the agency with jurisdiction for this purpose. If the court determines that the defendant has the ability to pay for the monitoring program, the court shall order the defendant to pay for the monitoring. If the court determines that the defendant does not have the ability to pay for the electronic monitoring, the court may order the electronic monitoring to be paid for by the local government that adopted the policy authorizing electronic monitoring. The duration of the electronic monitoring shall not exceed one year from the date the order is issued.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

The local government that adopted the policy authorizing electronic monitoring pays the fee.

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California Cal. Pen. Code § 294(b) Restitution fine to be imposed on conviction of violation of specified offenses against children

(b) Upon conviction of any person for a violation of Section 261, 264.1, 285, 286, 287, or 289 or former Section 288a, where the violation is with a minor under

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the age of 14 years, the court may, in addition to any other penalty or restitution fine imposed, order the defendant to pay a restitution fine based on the defendant’s ability to pay not to exceed five thousand dollars ($5,000), upon a felony conviction, or one thousand dollars ($1,000), upon a misdemeanor conviction, to be deposited in the Restitution Fund to be transferred to the county children’s trust fund for the purpose of child abuse prevention.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

None

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California Cal. Pen. Code § 594(d) Vandalism; Punishment

(d) If a minor is personally unable to pay a fine levied for acts prohibited by this section, the parent of that minor shall be liable for payment of the

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fine. A court may waive payment of the fine, or any part thereof, by the parent upon a finding of good cause.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

Parent pays fine or fine waived.

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California Cal. Pen. Code § 1001.15(a),(c) Defendant accused of felony; Fee for application for diversion; Criminalistics laboratory

(a) In addition to the fees authorized or required by other provisions of law, a judge may require the payment of an administrative fee, as part of an enrollment fee

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in a diversion program, by a defendant accused of a felony to cover the actual cost of any criminalistics laboratory analysis, the actual cost of processing a request or application for diversion, and the actual cost of supervising the divertee pursuant to Chapter 2.5 (commencing with Section 1000), not to exceed five hundred dollars ($500). The fee shall be payable at the time of enrollment in the diversion program. The court shall take into consideration the defendant’s ability to pay, and no defendant shall be denied diversion because of his or her inability to pay.

(c) In addition to the fees authorized or required by other provisions of law, a judge may require the payment of an administrative fee, as part of an enrollment fee in a diversion program, by a defendant accused of an act charged as, or reduced to, a misdemeanor to cover the actual cost of processing a request or application for diversion pursuant to Chapter 2.6 (commencing with Section 1000.6), the actual costs of reporting to the court on a defendant’s eligibility and suitability for diversion, the actual cost of supervising the divertee, and for the actual costs of performing any duties required pursuant to Section 1000.9, not to exceed three hundred dollars ($300). The fee shall be payable at the time of enrollment in the diversion program. The fee shall be determined on a sliding scale according to the defendant’s ability to pay, and no defendant shall be denied diversion because of his or her inability to pay.

Misdemeanor, Felony Not provided for At enforcement of fine or fee Not provided for Determined by judge without hearing No

None

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California Cal. Pen. Code § 1001.16(a) Defendant accused of misdemeanor; Fee for application for diversion; Criminalistics laboratory

(a) In addition to the fees authorized or required by other provisions of law, a judge may require the payment of an administrative fee, as part of an enrollment fee

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in a diversion program, by a defendant accused of a misdemeanor to cover the actual cost of any criminalistics laboratory analysis in a case involving a violation of the California Uniform Controlled Substances Act under Division 10 (commencing with Section 11000) of the Health and Safety Code, the actual cost of processing a request or application for diversion, and the actual cost of supervising the divertee, not to exceed three hundred dollars ($300). The fee shall be payable at the time of enrollment in the diversion program. The court shall take into consideration the defendant’s ability to pay, and no defendant shall be denied diversion because of his or her inability to pay.

Misdemeanor

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

None

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California Cal. Pen. Code § 1001.90(d) Diversion Restitution Fee: Imposition of fee; Amount

(d) In setting the amount of the diversion restitution fee in excess of the one hundred dollar ($100) minimum, the court shall consider any relevant factors, including, but not limited

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to, the defendant’s ability 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, and the extent to which any other person suffered any losses as a result of 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 ability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating the lack of his or her ability to pay. Express findings by the court as to the factors bearing on the amount of the fee shall not be required. A separate hearing for the diversion restitution fee shall not be required.

Misdemeanor, Felony

A consideration of the defendant's future earning potential.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

Fee may be set at a lower amount.

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California Cal. Pen. Code § 1203.41(d) Withdrawal of guilty or nolo contendere plea after completion of sentence; Notice to defendant; Limitations; Applicability; Costs

(d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs

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of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.

Misdemeanor, Felony

Undue hardship.

At enforcement of fine or fee Not provided for Determined by judge without hearing No

Reimbursment may not be ordered or may be reduced to a portion of the costs.