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. 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 § 1000.17 Child Abuse and Neglect Counseling: Cost of referral and expense of counseling payable by suspected abuser

If the person is referred pursuant to this chapter he or she shall be responsible for paying the administrative cost of the referral and the expense of such counseling as

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determined by the county department responsible for public social services or the probation department. The administrative cost of the referral shall not exceed one hundred dollars ($100) for any person referred pursuant to this chapter for an offense punishable as a felony and shall not exceed fifty dollars ($50) for any person referred pursuant to the chapter for an offense punishable as a misdemeanor. The department shall take into consideration the ability of the referred party to pay and no such person shall be denied counseling services because of his or her inability to pay.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Administrative decision No

None

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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 § 1001.53 Diversion of Misdemeanor Offenders: Hearing and determination;Payment of diversion costs; Exoneration of bond; Continuance of proceedings

The court shall hold a hearing and, after consideration of the probation department’s report, and any other relevant information, shall determine if the defendant consents to further proceedings under this

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chapter and waives his or her right to a speedy trial. If the court orders a defendant to be diverted, the court may make inquiry into the financial condition of the defendant, and upon a finding that the defendant is able in whole or in part, to pay the reasonable cost of diversion, the court may order him or her to pay all or part of such expense. The reasonable cost of diversion shall not exceed the amount determined to be the actual average cost of diversion services.

Misdemeanor

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge after hearing No

None

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California Cal. Pen. Code § 1001.65(b) Bad check diversion: Payment of fees, bank charges, and education class expenses

(b) Notwithstanding subdivision (a), when a criminal complaint is filed in a bad check case after the maker of the check fails to comply with the terms of the bad

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check diversion program, the court, after conviction, may impose a bad check processing fee for the recovery and processing efforts by the district attorney of not more than fifty dollars ($50) for each bad check in addition to the actual amount of any bank charges incurred by the victim as a result of the offense, including the returned check fee, if any, not to exceed one thousand two hundred dollars ($1,200) in the aggregate. The court also may, as a condition of probation, require a defendant to participate in and successfully complete a check writing education class. If so required, the court shall make inquiry into the financial condition of the defendant and, upon a finding that the defendant is able in whole or part to pay the expense of the education class, the court may order him or her to pay for all or part of that expense.

Misdemeanor

Not provided for.

At enforcement of fine or fee Not provided for Not provided for No

The individual pays only part of the diversion fee.

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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.

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California Cal Pen. Code § 1203.45(g) Sealing of minor’s misdemeanor record; Application of section; Reimbursement to county or city

(g) A person who is 26 years of age or older and petitions for an order sealing a record under this section may be required to reimburse the court for

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the actual cost 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 cost 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 cost 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 a case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the cost for services established pursuant to this subdivision.

Misdemeanor

Unde hardship

At enforcement of fine or fee Not provided for Not provided for No

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

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California Cal. Pen. Code § 3010.8 Electronic Monitoring: Charging of costs

(a) The department may charge persons on parole for the costs of any form of supervision that utilizes continuous electronic monitoring devices that monitor the whereabouts of the person pursuant

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to this article. Inability to pay all or a portion of the costs of continuous electronic monitoring authorized by this article shall not preclude use of continuous electronic monitoring and eligibility for parole shall not be enhanced by reason of ability to pay.
(b) Any person released on parole pursuant to subdivision (a) may be required to pay for that monitoring upon a finding of the ability to pay those costs. However, the department shall waive any or all of that payment upon a finding of an inability to pay. The department shall consider any remaining amounts the person has been ordered to pay in fines, assessments and restitution fines, fees, and orders, and shall give priority to the payment of those items before requiring that the person pay for the continuous electronic monitoring.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Administrative decision No

Waive all or part of the fee.

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California Cal. Pen. Code § 3000.07(b) GPS monitoring of parolee convicted of registerable sex offense; Costs

(b) Any inmate released on parole pursuant to this section shall be required to pay for the costs associated with the monitoring by a global positioning system. However, the Department

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of Corrections and Rehabilitation shall waive any or all of that payment upon a finding of an inability to pay. The department shall consider any remaining amounts the inmate has been ordered to pay in fines, assessments and restitution fines, fees, and orders, and shall give priority to the payment of those items before requiring that the inmate pay for the global positioning monitoring. No inmate shall be denied parole on the basis of his or her inability to pay for those monitoring costs.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Administrative decision No

Waive all or part of the fee.

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California Cal. Pen. Code § 3006(a) Costs paid by sex offenders

(a) The Department of Corrections may require parolees participating in relapse prevention treatment programs or receiving medication treatments intended to prevent them from committing sex offenses to pay some or

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all of the costs associated with this treatment, subject to the person’s ability to pay.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Administrative decision No

None

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California Cal. Pen. Code § 3004(c) Use of electronic monitoring or supervising devices; Costs; Waiver of costs

(c) Any inmate released on parole pursuant to this section shall be required to pay for the costs associated with the monitoring by a global positioning system. However, the Department

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of Corrections and Rehabilitation shall waive any or all of that payment upon a finding of an inability to pay. The department shall consider any remaining amounts the inmate has been ordered to pay in fines, assessments and restitution fines, fees, and orders, and shall give priority to the payment of those items before requiring that the inmate pay for the global positioning monitoring.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Not provided for No

Waive all or part of the fee.

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California Cal. Pen. Code § 1210.15 Electronic Monitoring: Charging of costs

(a) A chief probation officer may charge persons on probation for the costs of any form of supervision that utilizes continuous electronic monitoring devices that monitor the whereabouts of the

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person pursuant to this chapter, upon a finding of the ability to pay those costs. However, the department shall waive any or all of that payment upon a finding of an inability to pay. Inability to pay all or a portion of the costs of continuous electronic monitoring authorized by this chapter shall not preclude use of continuous electronic monitoring, and eligibility for probation shall not be enhanced by reason of ability to pay.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Administrative decision No

Waive all or part of the fee.

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California Cal. Pen. Code § 1208.2(d)-(i) Fees for certain programs

(d) The correctional administrator, or his or her designee, shall not consider a person’s ability or inability to pay all or a portion of the program fee for the purposes

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of granting or denying a person’s participation in, or assigning a person to, any of the programs governed by this section.
(e) For purposes of this section, “ability to pay” means the overall capability of the person to reimburse the costs, or a portion of the costs, of providing supervision and shall include, but shall not be limited to, consideration of all of the following factors:
(1) Present financial position.
(2) Reasonably discernible future financial position. In no event shall the administrator, or his or her designee, consider a period of more than six months from the date of acceptance into the program for purposes of determining reasonably discernible future financial position.
(3) Likelihood that the person shall be able to obtain employment within the six-month period from the date of acceptance into the program.
(4) Any other factor that may bear upon the person’s financial capability to reimburse the county for the fees fixed pursuant to subdivision (b).
(f) The administrator, or his or her designee, may charge a person the fee set by the board of supervisors or any portion of the fee and may determine the method and frequency of payment. Any fee the administrator, or his or her designee, charges pursuant to this section shall not in any case be in excess of the fee set by the board of supervisors and shall be based on the person’s ability to pay. The administrator, or his or her designee, shall have the option to waive the fees for program supervision when deemed necessary, justified, or in the interests of justice. The fees charged for program supervision may be modified or waived at any time based on the changing financial position of the person. All fees paid by persons for program supervision shall be deposited into the general fund of the county.
(g) No person shall be denied consideration for, or be removed from, participation in any of the programs to which this section applies because of an inability to pay all or a portion of the program supervision fees. At any time during a person’s sentence, the person may request that the administrator, or his or her designee, modify or suspend the payment of fees on the grounds of a change in circumstances with regard to the person’s ability to pay.
(h) If the person and the administrator, or his or her designee, are unable to come to an agreement regarding the person’s ability to pay, or the amount that is to be paid, or the method and frequency with which payment is to be made, the administrator, or his or her designee, shall advise the appropriate court of the fact that the person and administrator, or his or her designee, have not been able to reach agreement and the court shall then resolve the disagreement by determining the person’s ability to pay, the amount that is to be paid, and the method and frequency with which payment is to be made.
(i) At the time a person is approved for any of the programs to which this section applies, the administrator, or his or her designee, shall furnish the person a written statement of the person’s rights in regard to the program for which the person has been approved, including, but not limited to, both of the following:
(1) The fact that the person cannot be denied consideration for or removed from participation in the program because of an inability to pay.
(2) The fact that if the person is unable to reach agreement with the administrator, or his or her designee, regarding the person’s ability to pay, the amount that is to be paid, or the manner and frequency with which payment is to be made, that the matter shall be referred to the court to resolve the differences.

Misdemeanor, Felony

Not provided for.

At enforcement of fine or fee Not provided for Administrative decision No

Modify or suspend the payment of fees; change the frequency in which fees are paid. 

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Arkansas A.C.A. § 5-2-331 Cost of Mental Health Services, Examination, and Treatment of Defendant

Rules establishing reasonable charges for the cost of treatment or other mental health services under this section shall provide for waiving or postponing the collection of the charges based on:

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(A)  Clinical considerations; (B)  The defendant's inability to pay; or (C)  A court determination that the defendant is wholly or partly indigent and qualifies for the appointment of an attorney under § 16-87-213.

All Not provided for At enforcement of fine or fee Not provided for Administrative decision No Not provided for
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Colorado C.R.S. 16-18.5-104(1);(3) Initial Collections Investigation - Payment Schedule

(1)  Orders for restitution shall be due and payable at the time that the order of conviction is entered. Unless the defendant is sentenced to the custody of the executive director

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of the department of corrections, if at the time that the court enters an order for restitution pursuant to section 18-1.3-603, C.R.S., the defendant alleges that he or she cannot pay the full amount of restitution, the court shall direct that the defendant report immediately to the collections investigator.... (3)(a) Upon referral of a defendant pursuant to subsection (2) of this section, the collections investigator shall conduct an investigation into the financial ability of the defendant to pay the restitution ordered by the court. Such investigation may consist of but is not limited to: (I)  Submission of written financial affidavits or disclosures of the defendant's personal, household, and business income, assets, and liabilities; (II)  Submission to an oral examination of the defendant's financial circumstances; (III)  Submission of books, papers, documents, or other tangible things related to the defendant's financial circumstances including but not limited to: (A)  Payroll stubs; (B)  Financial institution account statements; (C)  Stock certificates; (D)  Deeds, titles, or other evidence of ownership; (E)  State and federal tax records; and (F)  Insurance policies and statements; (IV)  Research and verification of all oral and written statements made by the defendant. (b)  In the case of a juvenile defendant, the collections investigator may conduct the investigation into the juvenile's parents' or legal guardian's financial circumstances as well as the juvenile's. (c)  For purposes of conducting the investigation required by this subsection (3), the collections investigator shall have access to data maintained by other state agencies including but not limited to wage data, employment data, and income tax data. The judicial department and any other departments are authorized to enter into agreements for the sharing of such data. (d)  Notwithstanding the provisions of article 72 of title 24, C.R.S., documents and information obtained by the collections investigators pursuant to this subsection (3) shall not be public records, but shall be open to public inspection only upon an order of the court based on a finding of good cause. Documents and information obtained by the collection investigators may be made available to the victim and to any private collection agency or third party with whom the judicial department may contract for the collection of past due restitution. In addition, if any warrant is issued for the arrest of any defendant due to nonpayment of restitution, information concerning the defendant's address and place of employment may be shared with a criminal justice agency.

All Not provided for At enforcement of fine or fee Burden on government to show ability to pay Administrative decision No Not provided for
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Colorado C.R.S. 16-18.5-105 Monitoring - Default - Penalties

Whenever a defendant fails to make a payment of restitution within seven days after the date that the payment is due pursuant to a payment schedule established pursuant to this

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article, in addition to any other remedy, the collections investigator may: (a)  Conduct an additional financial investigation of the defendant as described in section 16-18.5-104 (3).

All Not provided for At enforcement of fine or fee Burden on government to show ability to pay Administrative decision No Not provided for