HB2825 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-810, Arizona Revised Statutes, is amended to read:

START_STATUTE13-810. Consequences of nonpayment of fines, surcharges, fees, assessments, restitution or incarceration costs; civil default determination; definition

A. In addition to any other remedy provided by law, including a writ of execution or other civil enforcement, if a defendant who is sentenced to pay a fine, a surcharge, a fee, an assessment or incarceration costs defaults in the payment of the fine, surcharge, fee, assessment or incarceration costs or of any installment as ordered, the court, on motion of the prosecuting attorney or on its own motion, shall require the defendant to show cause why the defendant's default should not be treated as contempt and may issue a summons or a warrant of arrest for the defendant's appearance at a hearing to determine the defendant's ability to pay the previously ordered fine, surcharge, fee, assessment or incarceration costs. The court shall not issue a warrant of arrest for the defendant's failure to appear at this hearing.

B. In addition to any other remedy provided by law, including a writ of execution or other civil enforcement, if a defendant who is ordered to pay restitution defaults in the payment of the restitution or of any installment as ordered, the court, on motion of the prosecuting attorney, on petition of any person entitled to restitution pursuant to a court order or on its own motion, shall require the defendant to show cause why the defendant's default should not be treated as contempt and may issue a summons or a warrant of arrest for the defendant's appearance at a hearing to determine the defendant's ability to pay the previously ordered restitution. The court shall not issue a warrant of arrest for the defendant’s failure to appear at this hearing.

C. In addition to any other remedy provided by law, including a writ of execution or other civil enforcement, the court, on receipt of a petition and issuance of an order to show cause, has jurisdiction to preserve rights over all restitution liens entered pursuant to section 13-806, subsection B, and perfected pursuant to section 13-806, subsection E.

C. If the court orders a hearing for nonpayment of a fine, a surcharge, a fee, an assessment, restitution or incarceration costs and the defendant fails to appear, the court shall not issue a warrant of arrest but may enter a civil default determination of nonpayment. On entry of the civil default determination, this state or the person entitled to restitution may pursue any civil collection remedy without further court order.

D. At any hearing on the order to show cause for nonpayment of a fine, a surcharge, a fee, an assessment, restitution or incarceration costs, the court, the prosecuting attorney or a person entitled to restitution may examine the defendant under oath concerning the defendant's financial condition, employment and assets or on any other matter relating to the defendant's ability to pay restitution.

E. If the court finds that the defendant has wilfully failed the present ability to pay a fine, a surcharge, a fee, an assessment, restitution or incarceration costs or finds that the defendant has intentionally refused to make a good faith effort to obtain the monies required for the payment, the court shall find that the default constitutes contempt and may do any of the following:

1. Order the defendant incarcerated in the county jail until the fine, surcharge, fee, assessment, restitution or incarceration costs, or a specified part of the fine, surcharge, fee, assessment, restitution or incarceration costs, is paid.

2. 1. Refer the defendant for revocation of probation, parole or community supervision as authorized by law.

3. 2. Enter an order pursuant to section 13-812. The levy or execution for the collection of a fine, a surcharge, a fee, an assessment, restitution or incarceration costs does not discharge a defendant who is incarcerated for nonpayment of the fine, surcharge, fee, assessment, restitution or incarceration costs until the amount of the fine, surcharge, fee, assessment, restitution or incarceration costs is collected for a civil enforcement remedy.

4. 3. Order the defendant to perform community restitution.

F. If the court finds that the default is not wilful and that the defendant cannot pay despite sufficient good faith efforts to obtain the monies, the court may take any lawful action including:

1. Modify the manner in which the restitution, fine, surcharge, fee, assessment or incarceration costs are to be paid.

2. Enter any reasonable order that would assure compliance with the order to pay.

3. Order the defendant to perform community restitution.

3. 4. Enter an order pursuant to section 13-812. The levy or execution for the collection of a fine, a surcharge, a fee, an assessment, restitution or incarceration costs does not discharge a defendant incarcerated for nonpayment of the fine, surcharge, fee, assessment, restitution or incarceration costs until the amount of the fine, surcharge, fee, assessment, restitution or incarceration costs is collected for a civil enforcement remedy.

G. If a fine, a surcharge, a fee, an assessment, restitution or incarceration costs are imposed on an enterprise it is the duty of the person or persons authorized to make disbursement from the assets of the enterprise to pay them from those assets, and their failure to do so shall be held a contempt unless they make the showing required in subsection A or B of this section. If the person or persons authorized to make disbursement from the assets of the enterprise fail to make the payment, the court, on motion of the prosecuting attorney, on petition of any person entitled to restitution pursuant to a court order or on its own motion, shall require the defendant to show cause why the defendant's default should not be treated as contempt.

H. If a defendant is sentenced to pay a fine, a surcharge, a fee, an assessment, restitution or incarceration costs, the clerk of the sentencing court, on request, shall make the defendant's payment history available to the prosecutor, victim, victim's attorney, probation department and court without cost.

I. On the issuance of a summons for a hearing under this section, the court shall provide the defendant with a written notice, in plain language, that states all of the following:

1. That the purpose of the hearing is to determine whether the defendant has the present ability to pay and has wilfully refused to pay.

2. That the defendant has the right to present evidence of financial hardship, including any evidence listed in section 13-825.

3. That no person may be incarcerated solely because of the person's inability to pay a fine, a surcharge, a fee, an assessment, restitution or incarceration costs due to indigence.

J. A defendant against whom a civil default determination has been entered may move the court to set aside the determination and any resulting civil enforcement remedy. The court shall stay pending enforcement actions if the defendant demonstrates that the defendant did not receive actual notice of the hearing, that the defendant's failure to appear was due to excusable neglect or circumstances beyond the defendant's control or that the defendant is indigent and the civil enforcement remedy creates an undue hardship on the defendant or the defendant's legal dependents. If a civil default determination has been entered:

1. Any monies that are recovered by the state pursuant to a valid civil default determination shall not be returned to the defendant.

2. On setting aside a default judgment, the court shall schedule a hearing pursuant to subsection A or B of this section.

3. If the defendant fails to appear at the newly scheduled hearing after receiving proper notice, the court shall immediately reenter the civil default judgment, and the state may resume all civil enforcement remedies without further delay.

4. A defendant may not move to set aside a second default judgment that is entered for the same underlying obligation unless the defendant proves by clear and convincing evidence that the second failure to appear was due to an extraordinary medical emergency or other catastrophic event.

K. For the purposes of this section, "Civil Enforcement Remedy" includes any of the following:

1. Restitution liens pursuant to section 13-806.

2. Garnishment pursuant to section 13-812.

3. Participation in a liability setoff program established pursuant to section 42-1122.

4. The interception of winnings pursuant to Title 5.

5. Any other civil remedy that is authorized by law for the collection of a debt, judgment or monetary obligation, whether currently existing or hereafter enacted. END_STATUTE