Bill Text: OR HB2701 | 2011 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to crime; declaring an emergency.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2701 Detail]

Download: Oregon-2011-HB2701-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1540

                         House Bill 2701

Introduced and printed pursuant to House Rule 12.00. Presession
  filed (at the request of House Interim Committee on Judiciary
  for Disability Rights Oregon)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Modifies process for commitment of persons found guilty except
for insanity or found to be incapacitated. Authorizes court or
Psychiatric Security Review Board to commit person to custody of
Oregon Health Authority.
  Requires court to conditionally release person found guilty
except for insanity of misdemeanor.
  Directs Oregon Health Authority to certify psychiatrists and
psychologists for purposes of certain evaluations of persons
found guilty except for insanity or found to be incapacitated.
  Requires that certain court-ordered evaluations of defendant be
conducted by certified psychiatrist or psychologist.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 161.315,
  161.327, 161.328, 161.329, 161.332, 161.336, 161.341, 161.346,
  161.365, 161.370, 161.375, 161.390 and 421.633; and declaring
  an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 161.315 is amended to read:
  161.315. Upon filing of notice or the introduction of evidence
by the defendant as provided in ORS 161.309 (3), the state
 { - shall have - }   { + has + } the right to have at least one
psychiatrist or licensed psychologist of its selection examine
the defendant.  The state shall file notice with the court of its
intention to have the defendant examined. Upon filing of the
notice, the court, in its discretion, may order the defendant
committed to   { - a state institution or any other suitable
facility, if the defendant is 18 years of age or older, - }
 { + the Oregon Health Authority or a suitable private
facility + } for observation and examination as the court may
designate for a period not to exceed 30 days.   { - If the
defendant is under 18 years of age, upon filing of the notice,
the court, in its discretion, may order the defendant committed
to a secure intensive community inpatient facility designated by
the Oregon Health Authority for observation and examination as
the court may designate for a period not to exceed 30 days. - }
If the defendant objects to the examiner chosen by the state, the

court for good cause shown may direct the state to select a
different examiner.
  SECTION 2. ORS 161.332 is amended to read:
  161.332. As used in ORS 161.315 to 161.351 and 161.385 to
161.395  { - , - }  { + :
  (1) 'Certified psychiatrist or psychologist' means a
psychiatrist or psychologist who holds a valid certification
under section 15 of this 2011 Act.
  (2) + } 'Conditional release' includes, but is not limited to,
the monitoring of mental and physical health treatment.
   { +  (3) 'Substantial danger to others' means a serious risk
to cause serious physical injury to another person as the result
of a mental disease or defect. + }
  SECTION 3.  { + (1) ORS 161.327 is added to and made a part of
ORS 161.315 to 161.351.
  (2) ORS 161.400 is added to and made a part of ORS 161.385 to
161.395. + }
  SECTION 4. ORS 161.327 is amended to read:
  161.327. (1)  { - (a) - }  Following the entry of a judgment
pursuant to ORS 161.319 { + , + }   { - and the dispositional
determination under ORS 161.325, if the court finds that the
person would have been guilty of a felony, or of a misdemeanor
during a criminal episode in the course of which the person
caused physical injury or risk of physical injury to another, the
court shall order that a psychiatric or psychological evaluation
be performed and a report of the evaluation be provided to the
court if an evaluation was not performed or a report was not
provided to the court prior to trial. Upon receipt of the
evaluation, - }  the court shall order that
  { - the - }  { +  a + } person be placed under the jurisdiction
of the Psychiatric Security Review Board for care and treatment
if { + :
  (a) The person is found guilty except for insanity of a felony;
and
  (b) + } The court finds by a preponderance of the evidence that
the person is affected by mental disease or defect and presents a
substantial danger to others requiring commitment   { - to - }
 { +  or conditional release. + }  { - : - }
    { - (A) A state hospital designated by the Oregon Health
Authority if the person is at least 18 years of age; or - }
    { - (B) A secure intensive community inpatient facility
designated by the authority if the person is under 18 years of
age. - }
    { - (b) The period of jurisdiction of the board is equal to
the maximum sentence provided by statute for the crime for which
the person was found guilty except for insanity. - }
    { - (c) When a court orders a psychiatric or psychological
evaluation of a financially eligible person under this
subsection, the court shall order the public defense services
executive director to pay a reasonable fee for the evaluation
from funds available for the purpose. - }
  (2) The court shall determine whether the person should be
committed to   { - a state hospital, or to a secure intensive
community inpatient facility, designated by - }  the  { + Oregon
Health + } Authority or conditionally released pending any
hearing before the board as follows:
  (a) If the court finds that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the court shall order the person committed to   { - a
state hospital designated by the authority if the person is at
least 18 years of age, or to a secure intensive community
inpatient facility designated by the authority if the person is
under 18 years of age, - }   { + the authority + } for custody,
care and treatment pending hearing before the board in accordance
with ORS 161.341 to 161.351.

  (b) If the court finds that the person presents a substantial
danger to others but that the person can be adequately controlled
with supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the court may
order the person conditionally released  { - , - }  { + .
  (3) When a person is conditionally released under subsection
(2)(b) of this section, the person is  + }subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under   { - this
paragraph - }  { +  subsection (2)(b) of this section + }, the
person or agency designated shall assume supervision of the
person pursuant to the direction of the Psychiatric Security
Review Board. The person or agency designated as supervisor shall
be required to report in writing no less than once per month to
the board concerning the supervised person's compliance with the
conditions of release.
    { - (3) - }  { +  (4) + } For purposes of this section, a
person affected by a mental disease or defect in a state of
remission is considered to have a mental disease or defect
requiring supervision when the disease may, with reasonable
medical probability, occasionally become active and, when active,
render the person a  { + substantial + } danger to others.
    { - (4) - }  { +  (5) + } In determining whether a person
should be conditionally released, the court { + :
  (a) + } May order evaluations, examinations and compliance as
provided in ORS 161.336 (4) and 161.346 (2) { + , provided that
the evaluation or examination is conducted by a certified
psychiatrist or psychologist + }.
   { +  (b) Shall order that the person be evaluated by a
certified psychiatrist or psychologist and a report of the
examination be provided to the court if an evaluation was not
performed or a report was not provided to the court prior to
trial. When the court orders an evaluation of a financially
eligible person under this paragraph, the court shall order the
public defense services executive director to pay a reasonable
fee for the evaluation from funds available for that purpose. + }
    { - (5) - }  { +  (6) + } In determining whether a person
should be committed to   { - a state hospital or to a secure
intensive community inpatient facility or conditionally
released - }  { +  the authority under subsection (2)(a) of this
section + }, the court shall have as its primary concern the
protection of society.
    { - (6) - }  { +  (7) + } Upon placing a person on
conditional release, the court shall notify the board in writing
of the court's conditional release order, the supervisor
appointed, and all other conditions of release, and the person
shall be on conditional release pending hearing before the board
in accordance with ORS 161.336 to 161.351. Upon compliance with
 { - this subsection and subsections (1) and (2) of - }  this
section, the court's jurisdiction over the person is terminated
and the board assumes jurisdiction over the person.
   { +  (8) The period of jurisdiction of the board is equal to
the maximum sentence provided by statute for the crime for which
the person was found guilty except for insanity. + }
    { - (7) - }  { +  (9) + } An order of the court under this
section is a final order appealable by the person found guilty
except for insanity in accordance with ORS 19.205 (5).
Notwithstanding ORS 19.255, notice of an appeal under this
section shall be served and filed within 90 days after the order
appealed from is entered in the register.  The person shall be
entitled on appeal to suitable counsel possessing skills and
experience commensurate with the nature and complexity of the
case. If the person is financially eligible, suitable counsel
shall be appointed in the manner provided in ORS 138.500 (1), and
the compensation for counsel and costs and expenses of the person
necessary to the appeal shall be determined and paid as provided
in ORS 138.500.
    { - (8) - }  { +  (10) + } Upon placing a person under the
jurisdiction of the board, the court shall notify the person of
the right to appeal and the right to a hearing before the board
in accordance with ORS 161.336 (7) and 161.341 (4).
  SECTION 5. ORS 161.329 is amended to read:
  161.329. Following the entry of a judgment pursuant to ORS
161.319   { - and the dispositional determination under ORS
161.325 - } ,  { +  the court shall order a person found guilty
except for insanity of a crime discharged from custody + } if the
court finds that { + :
  (1) + } The person is no longer affected by mental disease or
defect, or, if so affected, no longer presents a substantial
danger to others and is not in need of care, supervision or
treatment  { - , the court shall order the person discharged from
custody. - }  { + ; or
  (2) Each offense for which the person was found guilty except
for insanity is a misdemeanor. + }
  SECTION 6. ORS 161.328 is amended to read:
  161.328.   { - Following the entry of a judgment pursuant to
ORS 161.319 and the dispositional determination under ORS
161.325, if the court finds that the person would have been
guilty of a misdemeanor during a criminal episode in the course
of which the person did not cause physical injury or risk of
physical injury to another, and if - }   { + When the court
enters an order described in ORS 161.329 and + } the court has
probable cause to believe that the person is dangerous to self or
others as a result of a mental disorder, the court may initiate
civil commitment proceedings under ORS 426.070 to 426.130.
  SECTION 7. ORS 161.336 is amended to read:
  161.336. (1) If the Psychiatric Security Review Board
determines that the person presents a substantial danger to
others but can be adequately controlled with supervision and
treatment if conditionally released and that necessary
supervision and treatment are available, the board may order the
person conditionally released, subject to those supervisory
orders of the board as are in the best interests of justice, the
protection of society and the welfare of the person. The board
may designate any person or state, county or local agency the
board considers capable of supervising the person upon release,
subject to those conditions as the board directs in the order for
conditional release. Prior to the designation, the board shall
notify the person or agency to whom conditional release is
contemplated and provide the person or agency an opportunity to
be heard before the board. After receiving an order entered under
this section, the person or agency designated shall assume
supervision of the person pursuant to the direction of the board.
  (2) Conditions of release contained in orders entered under
this section may be modified from time to time and conditional
releases may be terminated by order of the board as provided in
ORS 161.351.
  (3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
The person may be continued on conditional release by the board
as provided in this section.

  (4)(a) As a condition of release, the board may require the
person to report to any state or local mental health facility for
evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the board may order the person, as a
condition of release, to cooperate with and accept the treatment
from the facility.
  (b) The facility to which the person has been referred for
evaluation shall perform the evaluation and submit a written
report of its findings to the board. If the facility finds that
treatment of the person is appropriate, it shall include its
recommendations for treatment in the report to the board.
  (c) Whenever treatment is provided by the facility, it shall
furnish reports to the board on a regular basis concerning the
progress of the person.
  (d) Copies of all reports submitted to the board pursuant to
this section shall be furnished to the person and the person's
counsel. The confidentiality of these reports is determined
pursuant to ORS 192.501 to 192.505.
  (e) The facility shall comply with any other conditions of
release prescribed by order of the board.
  (5) If at any time while the person is under the jurisdiction
of the board it appears to the board or its chairperson that the
person has violated the terms of the conditional release or that
the mental health of the individual has changed, the board or its
chairperson may order the person returned for evaluation or
treatment to   { - a state hospital designated by - }  { +  the
custody of + } the Oregon Health Authority   { - if the person is
at least 18 years of age, or to a secure intensive community
inpatient facility designated by the authority if the person is
under 18 years of age - } . A written order of the board, or its
chairperson on behalf of the board, is sufficient warrant for any
law enforcement officer to take into custody such person and
transport the person accordingly. A sheriff, municipal police
officer, constable, parole and probation officer, prison official
or other peace officer shall execute the order, and the person
shall be returned as soon as practicable to the custody of the
authority. Within 20 days following the return of the person to
the custody of the authority, the board shall conduct a hearing.
Notice of the time and place of the hearing shall be given to the
person, the attorney representing the person and the Attorney
General. The board may continue the person on conditional release
or, if it finds by a preponderance of the evidence that the
person is affected by mental disease or defect and presents a
substantial danger to others and cannot be adequately controlled
if conditional release is continued, it may order the person
committed to   { - a state hospital designated by the authority
if the person is at least 18 years of age, or to a secure
intensive community inpatient facility designated by the
authority if the person is under 18 years of age - }   { + the
authority + }. The state must prove by a preponderance of the
evidence the person's unfitness for conditional release. A person
in custody pursuant to this subsection has the same rights as any
person appearing before the board pursuant to ORS 161.346.
  (6) The community mental health program director, the director
of the facility providing treatment to a person on conditional
release, any peace officer or any person responsible for the
supervision of a person on conditional release may take a person
on conditional release into custody or request that the person be
taken into custody if there is reasonable cause to believe the
person is a substantial danger to others because of mental
disease or defect and that the person is in need of immediate
care, custody or treatment. Any person taken into custody
pursuant to this subsection shall be transported as soon as
practicable to a   { - state hospital designated by the authority
if the person is at least 18 years of age, or to a secure
intensive community inpatient facility designated by the
authority if the person is under 18 years of age - }  { +
facility designated by the authority + }. A person taken into
custody under this subsection has the same rights as any person
appearing before the board pursuant to ORS 161.346.
  (7)(a) Any person conditionally released under this section may
apply to the board for discharge from or modification of an order
of conditional release on the ground that the person is no longer
affected by mental disease or defect or, if still so affected, no
longer presents a substantial danger to others and no longer
requires supervision, medication, care or treatment. Notice of
the hearing on an application for discharge or modification of an
order of conditional release shall be made to the Attorney
General. The applicant, at the hearing pursuant to this
subsection, must prove by a preponderance of the evidence the
applicant's fitness for discharge or modification of the order of
conditional release. Applications by the person for discharge or
modification of conditional release shall not be filed more often
than once every six months.
  (b) Upon application by any person or agency responsible for
supervision or treatment pursuant to an order of conditional
release, the board shall conduct a hearing to determine if the
conditions of release shall be continued, modified or terminated.
The application shall be accompanied by a report setting forth
the facts supporting the application.
  (8) The total period of commitment and conditional release
ordered pursuant to this section may not exceed the maximum
sentence provided by statute for the crime for which the person
was found guilty except for insanity.
  (9) The board shall maintain and keep current the medical,
social and criminal history of all persons committed to its
jurisdiction. The confidentiality of records maintained by the
board shall be determined pursuant to ORS 192.501 to 192.505.
  (10) In determining whether a person should be committed to
  { - a state hospital or to a secure intensive community
inpatient facility, conditionally released or discharged - }
 { +  the authority + }, the board shall have as its primary
concern the protection of society.
  SECTION 8. ORS 161.341 is amended to read:
  161.341. (1) If the Psychiatric Security Review Board finds,
upon its initial hearing, that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the board shall order the person committed to  { - , or
retained in, a state hospital designated by the Oregon Health
Authority if the person is at least 18 years of age, or to a
secure intensive community inpatient facility designated by the
authority if the person is under 18 years of age, - }   { + the
Oregon Health Authority + } for custody, care and treatment. The
period of commitment ordered by the board may not exceed the
maximum sentence provided by statute for the crime for which the
person was found guilty except for insanity.
  (2) If at any time after the commitment of a person to   { - a
state hospital, or to a secure intensive community inpatient
facility, designated by - }  the authority under this section,
 { - the superintendent of the hospital or the director of the
secure intensive community inpatient facility - }  { +  the
authority + } is of the opinion that the person is no longer
affected by mental disease or defect, or, if so affected, no
longer presents a substantial danger to others or that the person
continues to be affected by mental disease or defect and
continues to be a danger to others, but that the person can be
controlled with proper care, medication, supervision and
treatment if conditionally released, the   { - superintendent or
director - }   { + authority + } shall apply to the board for an
order of discharge or conditional release. The application shall
be accompanied by a report setting forth the facts supporting the
opinion of the   { - superintendent or director - }  { +
authority + }. If the application is for conditional release, the
application must also be accompanied by a verified conditional
release plan. The board shall hold a hearing on the application
within 60 days of its receipt. Not less than 20 days prior to the
hearing before the board, copies of the report shall be sent to
the Attorney General.
  (3) The attorney representing the state may choose a
psychiatrist or licensed psychologist to examine the person prior
to the initial or any later decision by the board on discharge or
conditional release. The results of the examination shall be in
writing and filed with the board, and shall include, but need not
be limited to, an opinion as to the mental condition of the
person, whether the person presents a substantial danger to
others and whether the person could be adequately controlled with
treatment as a condition of release.
  (4) Any person who has been committed to   { - a state
hospital, or to a secure intensive community inpatient facility,
designated by - }  the authority for custody, care and treatment
or another person acting on the person's behalf may apply to the
board for an order of discharge or conditional release upon the
grounds:
  (a) That the person is no longer affected by mental disease or
defect;
  (b) If so affected, that the person no longer presents a
substantial danger to others; or
  (c) That the person continues to be affected by a mental
disease or defect and would continue to be a danger to others
without treatment, but that the person can be adequately
controlled and given proper care and treatment if placed on
conditional release.
  (5) When application is made under subsection (4) of this
section, the board shall require that a report from   { - the
superintendent of the hospital or the director of the secure
intensive community inpatient facility - }   { + the
authority + } be prepared and transmitted as provided in
subsection (2) of this section. The applicant must prove by a
preponderance of the evidence the applicant's fitness for
discharge or conditional release under the standards of
subsection (4) of this section, unless more than two years has
passed since the state had the burden of proof on that issue, in
which case the state shall have the burden of proving by a
preponderance of the evidence the applicant's lack of fitness for
discharge or conditional release. Applications for discharge or
conditional release under subsection (4) of this section
  { - shall - }   { + may + } not be filed more often than once
every six months commencing with the date of the initial board
hearing.
  (6) The board is not required to hold a hearing on a first
application under subsection (4) of this section any sooner than
90 days after the initial hearing. However, hearings resulting
from any subsequent requests shall be held within 60 days of the
filing of the application.
  (7)(a) In no case shall any person committed by the court under
ORS 161.327 to   { - a state hospital, or to a secure intensive
community inpatient facility, designated by - }  the authority be
held in   { - the hospital or facility - }   { + custody + } for
more than 90 days from the date of the court's commitment order
without an initial hearing before the board to determine whether
the person should be conditionally released or discharged.
  (b) In no case shall a person be held pursuant to this section
for a period of time exceeding two years without a hearing before
the board to determine whether the person should be conditionally
released or discharged.
  SECTION 9. ORS 161.346 is amended to read:
  161.346. (1) The Psychiatric Security Review Board shall
conduct hearings upon any application for discharge, conditional
release, commitment or modification filed pursuant to ORS
161.336, 161.341 or 161.351 and as otherwise required by ORS
161.336 to 161.351 and shall make findings on the issues before
it which may include:
  (a) If the board finds that the person is no longer affected by
mental disease or defect, or, if so affected, no longer presents
a substantial danger to others, the board shall order the person
discharged from commitment or from conditional release.
  (b) If the board finds that the person is still affected by a
mental disease or defect and is a substantial danger to others,
but can be controlled adequately if conditionally released with
treatment as a condition of release, the board shall order the
person conditionally released as provided in ORS 161.336.
  (c) If the board finds that the person has not recovered from
the mental disease or defect and is a substantial danger to
others and cannot adequately be controlled if conditionally
released on supervision, the board shall order the person
committed to   { - , or retained in, a state hospital designated
by the Oregon Health Authority if the person is at least 18 years
of age, or a secure intensive community inpatient facility
designated by the authority if the person is under 18 years of
age, - }  { +  the Oregon Health Authority + } for care, custody
and treatment.
  (2) At any time, the board may appoint a psychiatrist or
licensed psychologist to examine the person and to submit a
report to the board. Reports filed with the board pursuant to the
examination shall include, but need not be limited to, an opinion
as to the mental condition of the person and whether the person
presents a substantial danger to others, and whether the person
could be adequately controlled with treatment as a condition of
release. To facilitate the examination of the person, the board
may order the person placed in the temporary custody of   { - any
state hospital or other suitable - }  { +  the authority or a
suitable private + } facility.
  (3) The board may make the determination regarding discharge or
conditional release based upon the written reports submitted
pursuant to this section. If any member of the board desires
further information from the examining psychiatrist or licensed
psychologist who submitted the report, these persons shall be
summoned by the board to give testimony. The board shall consider
all evidence available to it which is material, relevant and
reliable regarding the issues before the board. Such evidence may
include but is not limited to the record of trial, the
information supplied by the attorney representing the state or by
any other interested party, including the person, and information
concerning the person's mental condition and the entire
psychiatric and criminal history of the person. All evidence of a
type commonly relied upon by reasonably prudent persons in the
conduct of their serious affairs shall be admissible at hearings.
Testimony shall be taken upon oath or affirmation of the witness
from whom received. The officer presiding at the hearing shall
administer oaths or affirmations to witnesses.
  (4) The board shall furnish to the person about whom the
hearing is being conducted, the attorney representing the person,
the Attorney General, the district attorney and the court or
department of the county from which the person was committed
written notice of any hearing pending under this section within a
reasonable time prior to the hearing. The notice shall include:
  (a) The time, place and location of the hearing.
  (b) The nature of the hearing and the specific action for which
a hearing has been requested, the issues to be considered at the
hearing and a reference to the particular sections of the
statutes and rules involved.
  (c) A statement of the authority and jurisdiction under which
the hearing is to be held.

  (d) A statement of all rights under subsection (6) of this
section.
  (5) Prior to the commencement of a hearing, the board or
presiding officer shall serve personally or by mail a written
notice to each party as provided in ORS 183.413 (2).
  (6) At the hearing, the person about whom the hearing is being
held shall have the right:
  (a) To appear at all proceedings held pursuant to this section,
except board deliberations.
  (b) To cross-examine all witnesses appearing to testify at the
hearing.
  (c) To subpoena witnesses and documents as provided in ORS
161.395.
  (d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
financially eligible, to have suitable counsel appointed at state
expense.
  (e) To examine all information, documents and reports which the
board considers. If then available to the board, the information,
documents and reports shall be disclosed to the person so as to
allow examination prior to the hearing.
  (7) A record shall be kept of all hearings before the board,
except board deliberations.
  (8) Upon request of any party before the board, or on its own
motion, the board may continue a hearing for a reasonable period
not to exceed 60 days to obtain additional information or
testimony or for other good cause shown.
  (9) Within 15 days following the conclusion of the hearing, the
board shall provide to the person, the attorney representing the
person, the Attorney General or other attorney representing the
state, if any, written notice of the board's decision.
  (10) The burden of proof on all issues at hearings of the board
shall be by a preponderance of the evidence.
  (11) If the board determines that the person about whom the
hearing is being held is financially eligible, the board shall
appoint suitable counsel to represent the person. Counsel so
appointed shall be an attorney who satisfies the professional
qualifications established by the Public Defense Services
Commission under ORS 151.216. The public defense services
executive director shall determine and allow fair compensation
for counsel appointed under this subsection and the reasonable
expenses of the person in respect to the hearing. Compensation
payable to appointed counsel shall not be less than the
applicable compensation level established under ORS 151.216. The
compensation and expenses so allowed shall be paid by the public
defense services executive director from funds available for the
purpose.
  (12) The Attorney General may represent the state at contested
hearings before the board unless the district attorney of the
county from which the person was committed elects to represent
the state. The district attorney of the county from which the
person was committed shall cooperate with the Attorney General in
securing the material necessary for presenting a contested
hearing before the board. If the district attorney elects to
represent the state, the district attorney shall give timely
written notice of such election to the Attorney General, the
board and the attorney representing the person.
  SECTION 10. ORS 161.365 is amended to read:
  161.365. (1)   { - Whenever - }   { + When + } the court has
reason to doubt the defendant's fitness to proceed by reason of
incapacity as
  { - defined - }  { +  described + } in ORS 161.360, the court
may call  { + any witness + } to its assistance in reaching its
decision   { - any witness and may appoint a psychiatrist or
psychologist to examine the defendant and advise the court - } .
  (2) If the court determines the assistance of a psychiatrist or
psychologist would be helpful, the court may order the defendant
to be   { - committed for the purpose of an examination for a
period not exceeding 30 days to a state mental hospital
designated by the Oregon Health Authority if the defendant is at
least 18 years of age, or to a secure intensive community
inpatient facility designated by the authority if the defendant
is under 18 years of age - }  { +  examined by a certified
psychiatrist or psychologist + }. The report of   { - each - }
 { +  the + } examination shall include, but is not necessarily
limited to, the following:
  (a) A description of the nature of the examination;
  (b) A statement of the mental condition of the defendant; and
  (c) If the defendant suffers from a mental disease or defect,
an opinion as to whether { + :
  (A) + } The defendant is incapacitated within the
 { - definition - }  { +  description + } set out in ORS
161.360 { + ; and
  (B) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain capacity to stand
trial + }.
  (3) Except when the defendant and the court both request to the
contrary, the report may not contain any findings or conclusions
as to whether the defendant as a result of mental disease or
defect was subject to the provisions of ORS 161.295 or 161.300 at
the time of the criminal act charged.
  (4) If the examination   { - by the psychiatrist or
psychologist - } cannot be conducted by reason of the
unwillingness of the defendant to participate   { - therein - }
 { +  in the examination + }, the report shall so state and shall
include, if possible, an opinion as to whether   { - such - }
 { + the + } unwillingness of the defendant was the result of
mental disease or defect affecting capacity to proceed.
  (5) The report of the examination shall be filed in triplicate
with the clerk of the court, who shall cause copies to be
delivered to the district attorney and to counsel for defendant.
  (6) { + (a) + } When upon motion of the court or a financially
eligible defendant, the court has ordered a psychiatric or
psychological examination of the defendant, a county or justice
court shall order the county to pay, and a circuit court shall
order the public defense services executive director to pay from
funds available for the purpose:
    { - (a) - }  { +  (A) + } A reasonable fee if the examination
of the defendant is conducted by a psychiatrist or psychologist
in private practice; and
    { - (b) - }  { +  (B) + } All costs including transportation
of the defendant if the examination is conducted by a
psychiatrist or psychologist in the employ of the Oregon Health
Authority or a community mental health program established under
ORS 430.610 to 430.670.
    { - (7) - }  { +  (b) + } When such an examination is ordered
at the request or with the acquiescence of a defendant who is
determined not to be financially eligible, the examination shall
be performed at the defendant's expense. When such an examination
is ordered at the request of the prosecution, the county shall
pay for the expense of the examination.
   { +  (7) As used in this section, 'certified psychiatrist or
psychologist' has the meaning given that term in ORS 161.332. + }
  SECTION 11. ORS 161.370 is amended to read:
  161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defendant
contests the finding of the report filed   { - by a psychiatrist
or psychologist - }  under ORS 161.365, the court may make the
determination on the basis of   { - such - }  { +  the + }
report. If the finding is contested, the court shall hold a
hearing on the issue. If the report is received in evidence
 { - upon such - }  { +  in the + } hearing, the party who
contests the finding   { - thereof shall have - }  { +  has + }
the right to summon and to cross-examine any psychiatrist or
psychologist who submitted the report and to offer evidence upon
the issue.  Other evidence regarding the defendant's fitness to
proceed may be introduced by either party.
  (2)   { - If the court determines that the defendant lacks
fitness to proceed, the proceeding against the defendant shall be
suspended, except as provided in subsection (12) of this section,
and the court - }   { + The court shall suspend the criminal
proceeding against the defendant if the court determines that:
  (a) The defendant lacks fitness to proceed and there is a
substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial; or
  (b) An additional period of treatment and observation is
necessary before the court can make the determination described
in paragraph (a) of this subsection.
  (3) Upon suspension of the criminal proceeding under subsection
(2) of this section, the court + } shall commit the defendant to
the custody of the   { - superintendent of a state mental
hospital designated by the - }  Oregon Health Authority   { - if
the defendant is at least 18 years of age, or to the custody of
the director of a secure intensive community inpatient facility
designated by the authority if the defendant is under 18 years of
age, - }  or shall release the defendant on supervision for as
long as
  { - such - }   { + the + } unfitness   { - shall endure - }
 { +  endures + }. The court may release the defendant on
supervision if   { - it - }   { + the court + } determines that
care other than commitment for incapacity to stand trial would
better serve the defendant and the community.   { - It - }
 { + The court + } may place conditions   { - which it - }
 { + that the court + } deems appropriate on the release,
including the requirement that the defendant regularly report to
the authority or a community mental health program for
examination to determine if the defendant has regained capacity
to stand trial. When the court, on its own motion or upon the
application of the   { - superintendent of the hospital or
director of the secure intensive community inpatient facility in
which the defendant is committed - }  { +  authority + }, a
person examining the defendant as a condition of release on
supervision, or either party, determines, after a hearing, if a
hearing is requested, that the defendant has regained fitness to
proceed, the  { + criminal + } proceeding shall be resumed. If,
however, the court is of the view that so much time has elapsed
since the commitment or release of the defendant on supervision
that it would be unjust to resume the criminal proceeding, the
court on motion of either party may dismiss the charge and may
order the defendant to be discharged or cause a proceeding to be
commenced forthwith under ORS 426.070 to 426.170 or 427.235 to
427.290.
    { - (3) - }  { +  (4) + } The   { - superintendent of a state
hospital or director of a secure intensive community inpatient
facility - }   { + authority + } shall cause the defendant to be
evaluated within 60 days from the defendant's delivery into the
 { - superintendent's or director's - } custody { +  of the
authority + }, for the purpose of determining whether there is a
substantial probability that, in the foreseeable future, the
defendant will have the capacity to stand trial.
    { - (4) - }  { +  (5) + } In addition, the
 { - superintendent or director - }  { + authority + } shall:
  (a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or { +
if the authority determines that the defendant + } will never
have the capacity to stand trial.
  (b) Within 90 days of the defendant's delivery into the
  { - superintendent's or director's - }  custody { +  of the
authority + }, notify the committing court that:
  (A) The defendant has the present capacity to stand trial;
  (B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
  (C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand
trial. If such a probability exists, the   { - superintendent or
director - }  { +  authority + } shall give the court an estimate
of the time in which the defendant, with appropriate treatment,
is expected to gain or regain capacity.
    { - (5) - }  { +  (6) + } If the   { - superintendent or
director - }   { + authority + } determines that there is a
substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the
 { - superintendent's or director's - }  custody  { + of the
authority + } where the defendant shall receive treatment
designed for the purpose of enabling the defendant to gain or
regain capacity. In keeping with the notice requirement under
subsection
  { - (4)(b) - }  { +  (5)(b) + } of this section, the
 { - superintendent or director - }  { + authority + } shall, for
the duration of the defendant's period of commitment, submit a
progress report to the committing court, concerning the
defendant's capacity or incapacity, at least once every 180 days
as measured from the date of the defendant's delivery into the
 { - superintendent's or director's - }  custody { +  of the
authority + }.
    { - (6) - }  { +  (7)(a)  + }A defendant who remains
committed under subsection   { - (5) - }  { +  (6) + } of this
section shall be discharged within a period of time that is
reasonable for making a determination concerning whether or not,
and when, the defendant may gain or regain capacity. However,
regardless of the number of charges with which the defendant is
accused, in no event shall the defendant be committed for longer
than whichever of the following, measured from the defendant's
initial custody date, is shorter:
    { - (a) - }  { +  (A) + } Three years; or
    { - (b) - }  { +  (B) + } A period of time equal to the
maximum sentence the court could have imposed if the defendant
had been convicted.
   { +  (b) For purposes of calculating the maximum period of
commitment described in paragraph (a) of this subsection:
  (A) The initial custody date is the date on which the defendant
is first committed under this section on any charge alleged in
the accusatory instrument; and
  (B) The defendant shall be given credit against each charge
alleged in the accusatory instrument for each day the defendant
is committed under this section, whether the days are consecutive
to one another or are interrupted by a period of time during
which the defendant has regained fitness to proceed. + }
    { - (7) - }  { +  (8) + } The   { - superintendent or
director - }   { + authority + } shall notify the committing
court of the defendant's impending discharge 30 days before the
date on which the   { - superintendent or director - }  { +
authority + } is required to discharge the defendant under
subsection
  { - (6) - }  { +  (7) + } of this section.
    { - (8) - }  { +  (9) + } When the committing court receives
a notice from the   { - superintendent or director - }
 { + authority + } under either subsection
  { - (4) or (7) - }  { +  (5) or (8) + } of this section
concerning the defendant's progress or lack thereof, the
committing court shall determine after a hearing, if a hearing is
requested, whether the defendant presently has the capacity to
stand trial.
    { - (9) - }  { +  (10) + } If   { - under subsection (8) of
this section - }  the court determines that the defendant lacks
the capacity to stand trial, the court shall further determine
whether there is a substantial probability that the defendant, in
the foreseeable future, will gain or regain the capacity to stand
trial and whether the defendant is entitled to discharge under
subsection
  { - (6) - }  { +  (7) + } of this section. If { + , at any
time,  + }the court determines that there is no substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial or that the defendant
is entitled to discharge under subsection   { - (6) - }  { +
(7) + } of this section, the court shall dismiss, without
prejudice, all charges against the defendant and:
  (a) Order that the defendant be discharged; or
  (b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
    { - (10) - }  { +  (11) + } All notices required under this
section shall be filed with the clerk of the court and delivered
to both the district attorney and the counsel for the defendant.
    { - (11) - }  { +  (12) + } If the defendant regains fitness
to proceed, the term of any sentence received by the defendant
for conviction of the crime charged shall be reduced by the
amount of time the defendant was committed under this section to
the custody of   { - a state mental hospital, or to the custody
of a secure intensive community inpatient facility, designated
by - }  the Oregon Health Authority.
    { - (12) - }   { + (13) Notwithstanding that the criminal
proceeding against the defendant has been suspended under
subsection (2) of this section,  + }the fact that the defendant
is unfit to proceed does not preclude any objection through
counsel and without the personal participation of the defendant
on the grounds that the indictment is insufficient, that the
statute of limitations has run, that double jeopardy principles
apply or upon any other ground at the discretion of the court
which the court deems susceptible of fair determination prior to
trial.
  SECTION 12. ORS 161.375 is amended to read:
  161.375.   { - (1) When a patient, who has been placed at the
Oregon State Hospital for evaluation, care, custody and treatment
under the jurisdiction of the Psychiatric Security Review Board
or by court order under ORS 161.315, 161.365 or 161.370, has
escaped or is absent without authorization from the Oregon State
Hospital or from the custody of any person in whose charge the
superintendent has placed the patient, the superintendent may
order the arrest and detention of the patient. - }
    { - (2) - }  { +  (1) + } When a patient, who has been placed
at a   { - secure intensive community inpatient - }  facility for
evaluation, care, custody and treatment under the jurisdiction of
the Psychiatric Security Review Board or by court order under ORS
161.315, 161.365, 161.370 or 419C.527, has escaped or is absent
without authorization from the facility or from the custody of
any person in whose charge the director of the facility has
placed the patient, the director of the facility shall notify the
Director of the Oregon Health Authority. The Director of the
Oregon Health Authority may order the arrest and detention of the
patient.
    { - (3) - }  { +  (2) + } The   { - superintendent or the - }
Director of the Oregon Health Authority may issue an order under
this section based upon a reasonable belief that grounds exist
for issuing the order. When reasonable,   { - the superintendent
or - }  the Director of the Oregon Health Authority shall
investigate to ascertain whether such grounds exist.
    { - (4) - }  { +  (3) + } Any order issued by   { - the
superintendent or - }  the Director of the Oregon Health
Authority as authorized by this section constitutes full
authority for the arrest and detention of the patient and all
laws applicable to warrant or arrest apply to the order. An order
issued by   { - the superintendent or - }  the Director of the
Oregon Health Authority under this section expires 72 hours after
being signed by   { - the superintendent or - }  the Director of
the Oregon Health Authority.
    { - (5) - }  { +  (4) + } As used in this section,   { -  '
superintendent' means the superintendent of the Oregon State
Hospital or - }  { +  'Director of the Oregon Health Authority'
includes  + }the   { - superintendent's - }  { + director's + }
authorized representative.
  SECTION 13. ORS 161.390 is amended to read:
  161.390. (1) The Oregon Health Authority shall promulgate rules
for the assignment of persons   { - to state mental hospitals or
secure intensive community inpatient facilities - }
 { + committed to the custody of the authority + } under ORS
161.341, 161.365 and 161.370 and for establishing standards for
evaluation and treatment of persons committed to   { - a state
hospital or a secure intensive community inpatient facility,
designated by - }  the authority, or ordered to a community
mental health program under ORS 161.315 to 161.351.
  (2) Whenever the Psychiatric Security Review Board requires the
preparation of a predischarge or preconditional release plan
before a hearing or as a condition of granting discharge or
conditional release for a person committed under ORS 161.327 or
161.341 to   { - a state hospital or a secure intensive community
inpatient facility - }  { +  the authority + } for custody, care
and treatment, the authority is responsible for and shall prepare
the plan.
  (3) In carrying out a conditional release plan prepared under
subsection (2) of this section, the authority may contract with a
community mental health program, other public agency or private
corporation or an individual to provide supervision and treatment
for the conditionally released person.
  SECTION 14. ORS 421.633 is amended to read:
  421.633. (1) Notwithstanding ORS 421.611 to 421.630 or any
actions taken under ORS 421.611 to 421.630, the Department of
Corrections may lease all or part of the real property and any
improvements to the real property known as the Milliron Road Site
south of Junction City, Lane County, to the Oregon Health
Authority for a period of years agreed upon by the department and
the authority.
  (2) The authority may build, own and operate, on the real
property leased from the department under subsection (1) of this
section, a hospital to provide diagnosis and evaluation, medical
care, detoxification, social services, rehabilitation or other
services for individuals committed to the authority under ORS
 { +  161.327, 161.370 or + } 426.130   { - and individuals
committed to a state hospital under ORS 161.327 or 161.370 - } .
  (3) The department and the authority are authorized to
negotiate and enter into a written agreement transferring
ownership of the hospital described in subsection (2) of this
section from the authority to the department, under terms and
conditions acceptable to the agencies.
  SECTION 15.  { + The Oregon Health Authority shall adopt rules
necessary to certify psychiatrists and licensed psychologists for
the purpose of performing evaluations and examinations described
in ORS 161.327 and 161.365. The rules must include a description
of the standards and qualifications necessary for
certification. + }
  SECTION 16.  { + (1) Section 15 of this 2011 Act and the
amendments to ORS 161.315, 161.327, 161.328, 161.329, 161.332,
161.336, 161.341, 161.346, 161.365, 161.370, 161.375, 161.390 and
421.633 by sections 1, 2 and 4 to 14 of this 2011 Act become
operative on January 1, 2012.
  (2) The Oregon Health Authority may adopt rules or take any
other action before the operative date specified in subsection
(1) of this section that is necessary to enable the authority to
exercise, on or after the operative date specified in subsection
(1) of this section, all the duties, functions and powers
conferred on the authority by this 2011 Act.
  (3) Any person who, on January 1, 2012, is subject to an order
under ORS 161.315 to 161.351, 161.365 or 161.370 committing the
person to a state hospital or secure intensive community
inpatient facility shall be, by operation of law on January 1,
2012, thereafter committed to the Oregon Health Authority.
Nothing in this subsection requires a change in the terms of the
person's commitment or modifies the circumstances under which the
person may be released from commitment. + }
  SECTION 17.  { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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