Bill Text: AZ HB2334 | 2021 | Fifty-fifth Legislature 1st Regular | Engrossed
Bill Title: Dangerous; incompetent person; evaluation; commitment
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2021-03-25 - Senate JUD Committee action: Do Pass, voting: (8-0-0-0) [HB2334 Detail]
Download: Arizona-2021-HB2334-Engrossed.html
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House Engrossed
dangerous; incompetent person; evaluation; commitment |
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State of Arizona House of Representatives Fifty-fifth Legislature First Regular Session 2021
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HOUSE BILL 2334 |
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AN ACT
amending sections 13-712, 13-4501, 13-4508, 13-4509, 13-4515 and 13-4517, Arizona Revised Statutes; amending title 13, chapter 41, Arizona Revised Statutes, by adding section 13-4519; amending title 36, Arizona Revised Statutes, by adding chapter 40; relating to incompetence to stand trial.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-712, Arizona Revised Statutes, is amended to read:
13-712. Calculation of terms of imprisonment
A. A sentence of imprisonment commences when sentence is imposed if the defendant is in custody or surrenders into custody at that time. Otherwise it commences when the defendant becomes actually in custody.
B. All time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided for by this chapter. A person who is found competent to stand trial after an involuntary commitment pursuant to section 13-4519 shall receive credit for all time that the person spent under the jurisdiction of the secure state mental health facility against a term of imprisonment for any of the charges that were the basis for the involuntary commitment.
C. If a sentence of imprisonment is vacated and a new sentence is imposed on the defendant for the same offense, the new sentence is calculated as if it had commenced at the time the vacated sentence was imposed, and all time served under the vacated sentence shall be credited against the new sentence.
D. If a person serving a sentence of imprisonment escapes from custody, the escape interrupts the sentence. The interruption continues until the person is apprehended and confined for the escape or is confined and subject to a detainer for the escape. Time spent in actual custody prior to before return under this subsection shall be credited against the term authorized by law if custody rested on an arrest or surrender for the escape itself, or if the custody arose from an arrest on another charge which culminated in a dismissal or an acquittal, and the person was denied admission to bail pending disposition of that charge because of a warrant lodged against such person arising from the escape.
E. The sentencing court shall include the time of commencement of sentence under subsection A of this section and the computation of time credited against sentence under subsection B, C or D, of this section in the original or an amended commitment order, under procedures established by rule of court.
Sec. 2. Section 13-4501, Arizona Revised Statutes, is amended to read:
13-4501. Definitions
In this chapter, unless the context otherwise requires:
1. "Clinical liaison" means a mental health expert or any other individual who has experience and training in mental health or developmental disabilities and who is qualified and appointed by the court to aid in coordinating the treatment or training of individuals who are found incompetent to stand trial. If intellectual disability is an issue, the clinical liaison shall be an expert in intellectual disabilities.
2. "Dangerous" means likely, as a result of a mental illness, defect or disability, to commit or attempt to commit homicide or a sexually violent offense as defined in section 36-3701 or to cause or attempt to cause serious physical injury to another person.
2. 3. "Incompetent to stand trial" means that as a result of a mental illness, defect or disability a defendant is unable to understand the nature and object of the proceeding or to assist in the defendant's defense. In the case of a person under eighteen years of age when the issue of competency is raised, incompetent to stand trial also means a person who does not have sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding or who does not have a rational and factual understanding of the proceedings against the person. The presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial.
3. 4. "Mental health expert" means a physician who is licensed pursuant to title 32, chapter 13 or 17 or a psychologist who is licensed pursuant to title 32, chapter 19.1 and who is:
(a) Familiar with this state's competency standards and statutes and criminal and involuntary commitment statutes.
(b) Familiar with the treatment, training and restoration programs that are available in this state.
(c) Certified by the court as meeting court developed guidelines using recognized programs or standards.
4. 5. "Mental illness, defect or disability" means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including congenital mental conditions, conditions resulting from injury or disease and developmental disabilities as defined in section 36-551.
6. "Secure state mental health facility" means a licensed facility under the supervision of the superintendent of the Arizona state hospital.
5. 7. "Threat to public safety" means charged with the commission of any of the following:
(a) A crime involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the infliction of physical injury on another person.
(b) A dangerous crime against children pursuant to section 13-705.
(c) Two or more nondangerous felonies within a period of twenty-four months.
Sec. 3. Section 13-4508, Arizona Revised Statutes, is amended to read:
13-4508. Privilege against self-incrimination; sealed reports
A. The privilege against self-incrimination applies to any examination that is ordered by the court pursuant to this chapter.
B. Any evidence or statement that is obtained during an examination is not admissible at any proceeding to determine a defendant's guilt or innocence unless the defendant presents evidence that is intended to rebut the presumption of sanity.
C. Any statement made by the defendant during an examination or any evidence resulting from that statement concerning any other event or transaction is not admissible at any proceeding to determine the defendant's guilt or innocence of any other criminal charges that are based on those events or transactions, except that a statement or evidence may be used by any party in a hearing to determine whether the defendant is eligible for court-ordered treatment pursuant to title 36, chapter 5 or is a sexually violent person.
D. Any statement made by the defendant or any part of the evaluations that is obtained during an examination may not be used for any purpose without the written consent of the defendant or the defendant's guardian or a court order that is entered by the court that ordered the examination or that is conducting a dependency or severance proceeding.
E. After a plea of guilty or guilty except insane or the trial or after the defendant is found to be unable to be restored to competence, the court shall order all the reports submitted pursuant to this section sealed. The court may order that the reports be opened only as follows:
1. For use by the court or defendant, or by the prosecutor if otherwise permitted allowed by law, for further competency or sanity evaluations, or in a hearing to determine whether the defendant is eligible for court-ordered treatment pursuant to title 36, chapter 5 or is a sexually violent person or in a trial to determine whether the defendant is dangerous and eligible for commitment pursuant to section 13-4519.
2. For statistical analysis.
3. When the records are deemed necessary to assist in mental health treatment pursuant to section 13-502 or 13-4517.
4. For use by the probation department or the state department of corrections if the defendant is in the custody of or is scheduled to be transferred into the custody of the state department of corrections for the purposes of assessment and supervision or monitoring of the defendant by that department.
5. For use by a mental health treatment provider that provides treatment to the defendant or that assesses the defendant for treatment.
6. For data gathering.
7. For scientific study.
F. Any statement made by the defendant during an examination that is conducted pursuant to this chapter or any evidence resulting from that statement is not subject to disclosure pursuant to section 36-509.
Sec. 4. Section 13-4509, Arizona Revised Statutes, is amended to read:
13-4509. Expert's report
A. An expert who is appointed pursuant to section 13-4505 shall submit a written report of the examination to the court within ten working days after the examination is completed. The report shall include at least the following information:
1. The name of each mental health expert who examines the defendant.
2. A description of the nature, content, extent and results of the examination and any test conducted and of any instrument or tool used to assess whether the defendant is likely to be dangerous.
3. The facts on which the findings are based.
4. An opinion as to the competency of the defendant.
B. If the mental health expert determines that the defendant is incompetent to stand trial, the report shall also include the following information:
1. The nature of the mental disease, defect or disability that is the cause of the incompetency.
2. The defendant's prognosis.
3. The nature of the mental illness, disease or defect that makes the defendant likely to be dangerous.
3. 4. The most appropriate form and place of treatment in this state, based on the defendant's therapeutic needs and potential threat to public safety.
4. 5. Whether the defendant is incompetent to refuse treatment and should be subject to involuntary treatment.
6. If the prognosis includes a determination that there is no substantial probability that the defendant will regain competency within twenty-one months after the date of the original finding of incompetency, whether the defendant should be considered dangerous.
C. If the mental health examiner determines that the defendant is currently competent by virtue of ongoing treatment with psychotropic medication, the court, in its discretion, may appoint a mental health expert who is a physician to address the necessity of continuing that treatment and any limitations that the medication may have on competency.
Sec. 5. Section 13-4515, Arizona Revised Statutes, is amended to read:
13-4515. Duration of order; excluded time calculation; notice of dismissed charge or voided order; petitions
A. An order or combination of orders that is issued pursuant to section 13-4512 or 13-4514 shall not be in effect for more than twenty-one months or the maximum possible sentence the defendant could have received pursuant to section 13-702, section 13-703, section 13-704, subsection A, B, C, D or E, section 13-705, section 13-706, subsection A, section 13-708, subsection D or section 13-751 or any section for which a specific sentence is authorized, whichever is less. In making this determination the court shall not consider the sentence enhancements under section 13-703 or 13-704 for prior convictions.
B. The court shall only consider the time a defendant actually spends in a restoration to competency program when calculating the time requirements pursuant to subsection A of this section.
C. The court shall notify the prosecutor, the defense attorney, the medical supervisor and the treating facility if the charges against the defendant are dismissed or if an order is voided by the court. No charges shall be dismissed without a hearing prior to before the dismissal.
D. If a defendant is discharged or released on the expiration of an order or orders issued pursuant to section 13-4512 or 13-4514, the medical supervisor may file a petition stating that the defendant requires further treatment pursuant to title 36, chapter 5, or appointment of a guardian pursuant to title 14 or involuntary commitment pursuant to section 13-4519 because the defendant is dangerous.
Sec. 6. Section 13-4517, Arizona Revised Statutes, is amended to read:
13-4517. Incompetent defendants; disposition
A. If the court finds that a defendant is incompetent to stand trial and that there is no substantial probability that the defendant will regain competency within twenty-one months after the date of the original finding of incompetency, any party may request that the court:
1. Remand the defendant to an evaluating agency for the institution of civil commitment proceedings pursuant to title 36, chapter 5. If the defendant is remanded, the prosecutor shall file a petition for evaluation and provide any known criminal history for the defendant.
2. Appoint a guardian pursuant to title 14, chapter 5.
3. Release the defendant from custody and dismiss the charges against the defendant without prejudice.
4. If the defendant is charged with a serious offense as defined in section 13-706, order a trial by jury to determine if the defendant is dangerous and should be involuntarily committed pursuant to section 13-4519.
B. If the court enters an order pursuant to subsection A, paragraph 1, or 2 or 4 of this section, the court may also order an assessment of the defendant's eligibility for private insurance or public benefits that may be applied to the expenses of the defendant's medically necessary maintenance and treatment, including services pursuant to title 36, chapter 29, state-only behavioral health services, title xviii services and medicare part D prescription drug benefits, supplemental security income and supplemental security disability income.
C. The court may retain jurisdiction over the defendant until the defendant is committed for treatment pursuant to section 13-4519 or title 36, chapter 5 or a guardian is appointed pursuant to title 14, chapter 5.
D. If the court remands the defendant for the institution of civil commitment proceedings pursuant to title 36, chapter 5 and the court is notified that the defendant has not had a civil commitment evaluation or if the court enters an order pursuant to subsection A paragraph 4 of this section, the court, if it has retained jurisdiction, may order the sheriff to take the defendant into custody so that the court may explore options pursuant to subsection A, paragraph 2, or 3 or 4 of this section.
E. If the court is notified that the defendant has not been ordered into treatment pursuant to title 36, chapter 5 and the court has retained jurisdiction, the court may order the sheriff to take the defendant into custody so that the court may explore options pursuant to subsection A, paragraph 2, or 3 or 4 of this section.
Sec. 7. Title 13, chapter 41, Arizona Revised Statutes, is amended by adding section 13-4519, to read:
13-4519. Dangerous and incompetent defendants; commitment trial; disposition; findings; annual report
A. If a court enters an order pursuant to section 13-4517, subsection a, paragraph 4, the court shall hold a trial by jury to determine if the defendant is dangerous and should be involuntarily committed. If the defendant is not represented by an attorney and is indigent, the court shall appoint an attorney, as soon as possible and before setting the trial, to represent the defendant at the trial and any further proceedings under title 36, chapter 40.
B. If there has not been a previous evaluation to determine whether the defendant is dangerous, the defendant shall be examined by mental health experts in the same manner prescribed in section 13-4505 to determine if the defendant should be considered dangerous. The defendant may retain the defendant's own mental health expert who may examine the defendant and present the defendant's own mental health evaluation at the trial.
C. At a trial to determine if the defendant is dangerous, the state shall establish beyond a reasonable doubt that the defendant is dangerous and that the defendant committed the acts that constitute the charged offense. If the jury does not find the defendant is dangerous, the court shall proceed pursuant to section 13-4517, subsection a, paragraph 1, 2 or 3.
D. If the jury finds that the defendant is dangerous, the court shall order the defendant to be committed to a secure state mental health facility licensed by the department of health services or the joint commission on accreditation of healthcare organizations. The defendant shall receive education, care, supervision and treatment to render the defendant either competent or nondangerous.
E. If the court issues a commitment order pursuant to this section:
1. All further proceedings for the defendant's continued treatment and the circumstances under which the defendant may be released shall be conducted pursuant to title 36, chapter 40.
2. The order shall require that the defendant remain committed to the custody of the secure state mental health facility until any of the following occurs:
(a) the court finds that the defendant is competent to stand trial.
(b) the court finds that the defendant is no longer dangerous.
F. The court shall retain jurisdiction over a defendant who is committed pursuant to this section until the court discharges the defendant from treatment or the time to commence a charge pursuant to section 13-107 has expired, whichever occurs first. For the purpose of calculating the time under section 13-107 no time is tolled. The court has continuing jurisdiction over the person pursuant to title 36, chapter 40.
G. If a defendant is involuntarily committed pursuant to this section, the director of the department of health services shall determine the extent to which the defendant is receiving or is eligible to receive private or public benefits that may be applied to the expenses of the defendant's maintenance and treatment that are medically necessary, including federal and state medicaid, Arizona health care cost containment system monies and regional behavioral health care authority monies. The department may accept these monies without a court order. The department is responsible for all remaining costs associated with the commitment.
H. Findings by the court made pursuant to this section are inadmissible in any proceeding other than a proceeding under title 36, chapter 40.
I. A person who is involuntarily committed to a secure state mental health facility pursuant to this section shall receive credit for all time spent under the jurisdiction of the secure state mental health facility if the person is found competent to stand trial and is subsequently sentenced to the state department of corrections for any of the charges that were the basis for the involuntary commitment.
J. The court shall annually report the following information for the previous year to the Arizona criminal justice commission:
1. The number of court orders for a jury trial pursuant to section 13-4517, subsection A, paragraph 4.
2. The number of defendants who are committed after a jury trial pursuant to this section.
3. The number of committed defendants who are conditionally released to a less restrictive alternative.
4. The number of committed defendants who are determined to not be dangerous and who are discharged.
Sec. 8. Title 36, Arizona Revised Statutes, is amended by adding chapter 40, to read:
CHAPTER 40
DANGEROUS AND INCOMPETENT PERSONS
ARTICLE 1. GENERAL PROVISIONS
36-4001. Definitions
In this article, unless the context otherwise requires:
1. "Competent professional" means a person who is:
(a) familiar with this state's criminal and involuntary commitment statutes and standards that are available in this state for persons with a mental illness, defect or disability.
(b) approved by the superior court as meeting court approved guidelines.
2. "Committed defendant" means a person who has been determined to be incompetent and nonrestorable and dangerous pursuant to title 13, chapter 41.
3. "Less restrictive alternative" means court-ordered treatment in a setting that is less restrictive than total confinement and that is conducted in a setting approved by the superintendent of the state hospital.
4. "Mental illness, defect or disability" means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including a congenital mental condition, a condition resulting from injury or disease or a developmental disability as defined in section 36-551.
5. "State hospital" means the Arizona state hospital.
6. "Superintendent" means the superintendent of the state hospital.
36-4002. Biannual examination of committed persons; report; records access; attorney withdrawal
A. The psychiatrist, psychologist or other competent professional of the state hospital or a licensed facility under the supervision of the state hospital shall biannually examine each person who is committed pursuant to section 13-4519. The person who conducts the biannual examination shall submit the examination report to the court, the committed defendant and any attorney of record for the committed defendant in connection with the committed defendant's commitment. The biannual report shall state the treatment and education that the committed defendant has received, a prognosis for the committed defendant's restoration to competency and whether the committed defendant remains dangerous.
B. If the psychiatrist, psychologist or other competent professional submits a report indicating that the committed defendant is competent to stand trial or is no longer dangerous, the court shall hold a hearing to determine whether the committed defendant is competent or is no longer dangerous.
C. If the psychiatrist, psychologist or other competent professional submits a report that the committed defendant is no longer dangerous in whole or in part because of medication that the committed defendant is taking, the report shall state whether the committed defendant will continue to take that medication if released to a less restrictive alternative and would comply with all other conditions of a less restrictive alternative.
D. The court shall hold the hearing within forty-five days after receiving the report. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the committed defendant will not be substantially prejudiced. The prosecuting agency shall represent the state at the hearing and may request that the committed defendant be examined by a competent professional selected by the prosecuting agency. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous or that the committed defendant is competent to stand trial.
E. A retained or appointed competent professional shall have access to all records concerning the committed defendant. All competent professionals shall have equal access to the committed defendant as well as all records concerning the committed defendant.
F. This section does not preclude the committed defendant from petitioning the court for conditional release to a less restrictive alternative or discharge from treatment pursuant to section 36-4004.
G. If the committed defendant's attorney withdraws from representing the committed defendant at any time during the committed defendant's commitment, the court shall notify the attorney for the state and the committed defendant and either allow the committed defendant sufficient time to employ another attorney or, if the committed defendant is indigent, appoint an attorney to represent the committed defendant in connection with proceedings under this article.
36-4003. Disposition
After a hearing pursuant to section 36-4002 or 36-4004, if the court finds that:
1. The Committed defendant has been restored to competency, the court shall order the criminal proceedings to resume.
2. The Committed defendant has not been restored to competency and:
(a) The Committed defendant is not dangerous, the court shall release the Committed defendant from treatment and proceed pursuant to section 13-4517, paragraph 1, 2 or 3.
(b) The Committed defendant is not dangerous in whole or in part because of the habilitation or treatment that the patient is receiving, including taking medication, the court may release the Committed defendant to a less restrictive alternative pursuant to sections 36-4005 and 36-4006.
(c) The Committed defendant is dangerous, the Committed defendant shall remain committed for education, care, supervision and treatment to render the Committed defendant competent or nondangerous.
36-4004. Petition for conditional release; procedures
A. If the superintendent of the state hospital or the director of the department of health services determines that the Committed defendant's mental illness, defect or disability has so changed that the Committed defendant is no longer dangerous if conditionally released to a less restrictive alternative, the superintendent or director shall allow the Committed defendant to petition the court for conditional release to a less restrictive alternative. The Committed defendant shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for conditional release to a less restrictive alternative within forty-five days after receiving the petition. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the Committed defendant will not be substantially prejudiced. The prosecuting agency shall represent the state at the hearing and may request that the Committed defendant be examined by a competent professional selected by the prosecuting agency.
B. The attorney for the state has the burden of proving by clear and convincing evidence that the Committed defendant's mental illness, defect or disability has not changed and that the Committed defendant remains dangerous if conditionally released to a less restrictive alternative or conditionally discharged.
C. This section does not prohibit the Committed defendant from annually petitioning the court for conditional release to a less restrictive alternative without the approval of the superintendent of the state hospital or the director of the department of health services. The director shall provide an annual written notice to the Committed defendant of the Committed defendant's right to petition the court for conditional release to a less restrictive alternative without the approval of the superintendent or director. The notice must contain a waiver of rights. The director shall submit the notice and waiver to the court with the annual examination report.
D. The Committed defendant may be present at the hearing. The prosecuting agency may request that the Committed defendant be examined by a competent professional selected by the prosecuting agency. The Committed defendant may retain and the court, on request of an indigent Committed defendant, may appoint a competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the Committed defendant's mental illness, defect or disability has not changed and that the Committed defendant remains dangerous if conditionally released to a less restrictive alternative. If the state does not meet its burden of proof, the Committed defendant shall be discharged from treatment.
E. At the conclusion of a hearing, if the court finds that there is no legally sufficient evidentiary basis to conclude that the conditions prescribed in section 36-4006 have been met, the court shall deny conditional release to a less restrictive alternative.
36-4005. Conditional release to a less restrictive alternative; conditions; reports; review
A. If the court determines that conditional release to a less restrictive alternative is in the best interest of the Committed defendant and will adequately protect the community and the court determines that the minimum conditions under section 36-4006 are met, the court shall enter judgment and order the Committed defendant's conditional release to a less restrictive alternative.
B. If the court concludes that the only reason the Committed defendant does not meet the standard for continued commitment is the effect of treatment or habilitation being received, the court may deny the request for conditional release to a less restrictive alternative unless the court finds by a preponderance of the evidence that the Committed defendant will continue to receive treatment and habilitation following release for as long as the treatment and habilitation is required. If the court finds that the Committed defendant will continue to receive the needed treatment or habilitation, the court may order the Committed defendant to be conditionally released to a less restrictive alternative on the condition that the Committed defendant continue to receive treatment or habilitation. If the Committed defendant fails to receive the treatment or habilitation ordered, the court may revoke the conditional release.
C. The court may impose any additional conditions on the Committed defendant that the court determines are necessary to ensure the Committed defendant's compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both ensure the Committed defendant's compliance with treatment and protect the community, the court shall remand the Committed defendant to the custody of the superintendent of the state hospital for care, supervision or treatment in a licensed facility that is under the supervision of the superintendent.
D. If the provider that is designated to provide inpatient or outpatient treatment or to monitor or supervise any other terms and conditions of a Committed defendant's placement in a less restrictive alternative is not the state hospital, the provider shall agree in writing to provide the treatment.
E. Before the court authorizes a Committed defendant's conditional release to a less restrictive alternative, the court shall impose any conditions on the Committed defendant that the court determines are necessary to ensure the safety of the community. The conditions shall include that before being released to a less restrictive alternative, a Committed defendant must submit to ninety days of inpatient evaluation at the state hospital, except that in the superintendent's discretion, the duration of the evaluation period may be less than ninety days. The court shall order the superintendent to investigate the less restrictive alternative and to submit additional conditions to the court. The court shall give a copy of the conditions of release to the Committed defendant and to any designated service provider. Other conditions may include any of the following:
1. Specifying a residence.
2. Requiring compliance with any medications prescribed and any testing or monitoring required.
3. Prohibiting any contact with potential or past victims or other persons and prohibiting associating with other persons or types of persons.
4. Prohibiting the use of alcohol and other drugs.
5. Requiring supervision by the department of health services.
6. Requiring that the Committed defendant remain in this state unless the Committed defendant receives prior authorization to leave this state from the court.
7. Requiring compliance with required supervision, monitoring or reporting.
8. Complying with other conditions that the court or the superintendent determines are in the best interest of the Committed defendant or others.
F. Following a determination that a Committed defendant's release to a less restrictive alternative is warranted and after considering the recommendation regarding the duration and amount of treatment by the superintendent, the court shall require as a condition of release to a less restrictive alternative that the Committed defendant participate in outpatient treatment. The outpatient supervision and treatment may include monitoring a Committed defendant by use of an electronic bracelet. The treatment shall continue until the court orders a change in the Committed defendant's treatment requirements or the Committed defendant is discharged pursuant to section 36-4009.
G. Each month or as otherwise directed by the court, each designated service provider shall submit a report that states whether the Committed defendant is complying with the terms and conditions of conditional release to a less restrictive alternative to:
1. The court.
2. The facility from which the Committed incompetent was released.
3. The county attorney in the county where the Committed defendant was found to be a Committed defendant or to the attorney general.
H. The court shall review the case of each Committed defendant who is conditionally released to a less restrictive alternative within one year after the Committed defendant's release and thereafter on motion of either party or the superintendent or on the court's own motion until the Committed defendant is discharged. At a case review, the court shall determine only if the Committed defendant shall continue to be conditionally released to a less restrictive alternative. In making its determination, the court shall consider the periodic reports that are submitted to the court pursuant to subsection G of this section and the opinions of the superintendent and any other competent professional.
I. If a Committed defendant is conditionally released to a less restrictive alternative, the department of health services shall notify the department of public safety of the Committed defendant's release so that the department of public safety may commence any applicable notification process under section 13-3825.
36-4006. Conditional release to a less restrictive alternative; findings
Before the court orders that a Committed defendant be conditionally released to a less restrictive alternative, the court shall find that all of the following apply:
1. The Committed defendant will be treated by a provider who is qualified to provide the necessary treatment in this state.
2. The provider presents a specific course of treatment for the Committed defendant, agrees to assume responsibility for the Committed defendant's treatment, will report on the Committed defendant's progress to the court on a regular basis and will report any violations as prescribed in paragraphs 4 and 5 of this section immediately to the court, the attorney for the state and the superintendent.
3. The Committed defendant who is conditionally released to a less restrictive alternative has housing arrangements that are sufficiently secure to protect the community and the person or agency that is providing the housing to the conditionally released Committed defendant agrees in writing to the following conditions:
(a) To accept the conditionally released Committed defendant.
(b) To provide the level of security that the court requires.
(c) To immediately report the unauthorized absence of the conditionally released Committed defendant from the housing arrangement to which the Committed defendant has been assigned.
4. The Committed defendant will comply with the provider and all of the requirements that are imposed by the provider and the court.
5. The Committed defendant will comply with the supervision requirements that are imposed by the department of health services.
36-4007. Detention and commitment requirements; definition
A. A Committed defendant does not forfeit any legal right and may not suffer any legal disability as a consequence of any actions taken or orders made pursuant to this article except as specifically provided in this article.
B. A Committed defendant shall receive care, supervision or treatment. The superintendent shall keep records detailing all medical, expert and professional care and treatment that a Committed defendant receives and shall keep copies of all reports of periodic examinations that are made pursuant to this article. These records and reports shall be made available on request only to any of the following:
1. The Committed defendant.
2. The Committed defendant's attorney.
3. The county attorney or the attorney general.
4. The court.
5. On proper showing, an expert or professional who demonstrates a need for access to the records or reports.
6. Any mental health professional directly responsible or associated with the mental health professional who is directly responsible for the care, control, assessment or treatment of the Committed defendant.
C. At the time a Committed defendant is detained or transferred into a licensed facility, the person in charge of the facility or the person's designee shall take reasonable precautions to inventory and safeguard the personal property of the detained or transferred Committed defendant. The staff member who makes an inventory of the Committed defendant's personal property shall give a signed copy of that inventory to the Committed defendant. The facility shall allow a responsible relative to inspect the property, subject to any limits that the Committed defendant specifically imposes. The facility may not disclose the contents of the inventory to any other person without the consent of the Committed defendant or a court order.
D. This article does not prohibit a Committed defendant from exercising any right that is available for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus. The Committed defendant must exhaust all direct appeal and postcommitment procedures before exercising the Committed defendant's right to petition for a writ of habeas corpus.
E. A committed defendant who is indigent may not be conditionally released to a less restrictive alternative or discharged without suitable clothing. When a Committed defendant is conditionally released to a less restrictive alternative or discharged, the superintendent shall furnish the Committed defendant with an amount of money in conformance with section 31-228.
F. For the purposes of this section, "responsible relative" means the spouse, parent, adult child or adult sibling of the Committed defendant and includes the guardian, conservator or attorney of the Committed defendant.
36-4008. Revocation of conditional release to a less restrictive alternative; hearing
A. If the Attorney for the state or the court believes that a Committed defendant who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of release or is in need of additional care and treatment, the designated service provider or the attorney for the state may petition the court for, or the court on its own motion may schedule, a hearing for the purpose of revoking or modifying the terms and conditions of the Committed defendant's conditional release. The hearing shall be held within ten days after the petition is filed.
B. If the attorney for the state or the court reasonably believes that a Committed defendant who is conditionally released to a less restrictive alternative is not complying with the terms and conditions of the Committed defendant's conditional release or is in need of additional care or treatment or that the circumstances of the release have changed so that the community is no longer safe, the court or the department of health services may order that the conditionally released Committed defendant be detained and taken into custody until a hearing can be scheduled to determine if the Committed defendant's conditional release should be revoked or modified. The court and any attorney of record representing the committed defendant shall be notified before the close of the next judicial day of the Committed defendant's detention. The attorney for the state and the conditionally released Committed defendant may request an immediate mental examination of the Committed defendant. If the conditionally released Committed defendant is indigent, the court, on request, shall assist the Committed defendant in obtaining a competent professional to conduct the examination.
C. Within five days after receiving notice of the Committed defendant's detention, the court shall schedule a hearing. At the hearing, the court shall determine if the state has proved by a preponderance of the evidence that the Committed defendant who is conditionally released to a less restrictive alternative did not comply with the terms and conditions of release or is in need of additional care or treatment, if the circumstances of the release have changed so that the community is no longer safe, if the Committed defendant should continue on conditional release under the same or modified conditions or if the conditional release should be revoked and the Committed defendant should be committed to total confinement, subject to release only under the provisions of this article. The court may admit hearsay evidence if the court finds that the hearsay evidence is otherwise reliable.
36-4009. Petition for discharge; procedures; annual report
A. If the superintendent or the director of the department of health services determines that the Committed defendant's mental illness, defect or disability has so changed that the Committed defendant is no longer dangerous if discharged but remains incompetent to stand trial, the superintendent or director shall allow the Committed defendant to petition the court for discharge. The Committed defendant shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for discharge within forty-five days after receiving the petition.
B. The Committed defendant may be present at the discharge hearing. The court may continue the hearing on the request of either party and a showing of good cause or on its own motion if the Committed defendant will not be substantially prejudiced. The prosecuting agency shall represent the state at the hearing and may request that the Committed defendant be examined by a competent professional who is selected by the prosecuting agency. The attorney for the state has the burden of proving by clear and convincing evidence that the Committed defendant's mental illness, defect or disability has not changed and that the Committed defendant remains dangerous. If the state does not meet its burden of proof, the Committed defendant shall be discharged from treatment.
C. If a Committed defendant is discharged, the department of health services shall notify the department of public safety of the Committed defendant's discharge so that the department of public safety may commence any notification process under section 13-3825.
D. This section does not prohibit the Committed defendant from annually petitioning the court for discharge without the approval of the superintendent or the director of the department of health services. The director of the department of health services shall give annual written notice to the Committed defendant of the Committed defendant's right to petition the court for discharge without the approval of the superintendent or director and provide a copy of that written notice to any attorney who represents the committed defendant in connection with proceedings under this article. The notice shall contain a waiver of rights. The director shall submit the notice and waiver to the court with the annual examination report.
E. The SUPERINTENDENT of the Arizona state hospital shall annually report the following information for the previous year to the Arizona criminal justice commission:
1. The number of committed defendants who are under the jurisdiction of the Arizona state hospital because the individual is dangerous, incompetent and nonrestorable.
2. the number of individuals who are committed defendants and dangerous and who are released.
36-4010. Place for proceedings; transportation; immunity
A. A Committed defendant may not be transported from a licensed facility under the supervision of the superintendent, except that a Committed defendant may be transported to court for any of the following reasons:
1. A hearing on a biannual examination.
2. A hearing on a petition for conditional release to a less restrictive alternative pursuant to section 36-4005.
3. A hearing on a petition for discharge pursuant to section 36-4009.
4. Any evidentiary hearing in which the presence of a Committed defendant is necessary.
5. Any court proceeding not otherwise specified in this article where the presence of the Committed defendant is required.
B. Subsection A of this section does not apply to any Committed defendant who the court has determined is subject to discharge pursuant to section 36-4009 or to any necessary medical transports.
C. Subsection A of this section does not preclude any proceeding from being held on the grounds of the state hospital or from using a telephonic conference or an interactive audiovisual device. The court shall adopt rules concerning the conduct of proceedings pursuant to this article. The rules shall ensure the safety of all persons. The rules may include provisions that allow for proceedings to be held on the grounds of the Arizona state hospital or for the use of a telephonic conference or an interactive audiovisual device.
D. The department of health services is responsible for transporting a Committed defendant to and from a medical facility. The department shall determine the appropriate mode of transportation and level of security and restraint for the transportation needs of the Committed defendant. In determining the appropriate mode of transportation and level of security and restraint, the department shall consider the safety of the public, the transporting personnel and the detained or Committed defendant.
E. The department of health services and any county sheriff are immune from liability for any good faith acts under this section.
36-4011. Findings
A Finding made by the court pursuant to this article is inadmissible in any proceeding other than a proceeding under this article or under title 13, chapter 41.
Sec. 9. Retroactivity
This act applies retroactively to from and after December 31, 2020.
