Yesterday the New Hampshire chapter of the American Civil Liberties Union released a report of their investigation into how courts around the state deal with fine payment in criminal cases. The report is well worth a read because they did an amazing job. The report is available here: http://aclu-nh.org/aclu-report-exposes-debtors-prison-practices-in-new-hampshire/
If you are headed to court here is what you need to know about fines. Every offense in the NH court system has a potential fine: motor vehicle violations, city ordinance violations, violations, class A and B misdemeanors, and all felonies. Every fine has a penalty assessment – basically a fine for having to pay a fine – of 24%. So for a $100 fine, you’ll actually have to pay $124.
The court rules state that fines are payable on the day they are imposed. The courts will accept cash, credit cards, and checks.
If you have a legitimate inability to pay your fine, the court rule requires the court to make you complete a financial affidavit describing your financial circumstances. The affidavit asks about everything from rent and utilities, property ownership, food and general living expense to how much is spent on alcohol and cigarettes. This affidavit must be signed under oath in front of a notary. Be honest. I can smell a smoker a mile away, so can the court clerk.
If after reviewing an affidavit the judge believes there is a genuine inability to pay a fine there are a few options. They can order community service worth $10 per hour. So if a fine is $250 that would be 25 hours of community service. The court can also order a payment plan, which will require an additional one-time $25 fee.
What the NHACLU found and what my experience shows me is that many judges and prosecutors ignore the rule requiring them to consider a defendant’s ability to pay a fine. Instead, judges order defendants to serve a fine off in jail at $50 per day – even if the charge has no risk of jail time. Or the judge won’t accept negotiated agreements if defendants cannot pay a fine on that day. Other times prosecutors will only agree to recommend certain sentences if the fines can be paid on the day imposed OR if the defendant agrees to serve the fine off in jail.
You cannot be sent to jail if you are unable to pay a fine. If you are found to be able to pay a fine and fail to pay it that is a different story. You could be found in contempt of court and ordered to jail.
If you have a genuine inability to pay a fine, tell the court. Don’t agree to go to jail. If they threaten you with jail, ask for an attorney. Oftentimes the court is unwilling to provide the financial affidavit. Ask the judge for it – make a record. Better yet, go prepared. The financial affidavit is available here: http://www.courts.state.nh.us/forms/nhjb-2534-d.pdf.
As always, nothing here should be construed as legal advice or to create an attorney client relationship between you and Melone Law.