Staley

A person who is convicted of Health and Safety Code offenses involving controlled substances shall be ordered to pay a drug program fee of up to $100 for each separate offense if the trial court determines the person has the “ability to pay” the fee. (Health & Saf. Code, § 11372.7.)

We conclude that “ability to pay” a drug program fee does not require existing employment or cash on hand. Rather, a determination of ability to pay may be made based on the person’s ability to earn where the person has no physical, mental or emotional impediment which precludes the person from finding and maintaining employment once his or her sentence is completed.

Facts

On January 21, 1991, undercover officers used an informant to make a controlled buy of methamphetamine from defendant at his home.

On the afternoon of February 21, 1991, undercover officers employed the same informant to make a second controlled buy of methamphetamine from defendant at his house. That evening, officers executed a search warrant at defendant’s home and seized two packages of methamphetamine totalling .27 grams, a triple beam scale with powder residue, packaging material, and syringes. The packages of…