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H.B. 176

             1     

WEAPONS RESTRICTIONS FOR MENTALLY

             2     
ILL PERSONS

             3     
2000 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Gary F. Cox

             6      AN ACT RELATING TO PUBLIC SAFETY AND HUMAN SERVICES; ELIMINATING THE
             7      REQUIREMENT THAT THE PERSON BE AN "IMMEDIATE" DANGER TO HIMSELF AND
             8      OTHERS; AND REQUIRING THE BUREAU OF CRIMINAL IDENTIFICATION TO CHECK
             9      COURT RECORDS FOR CURRENT COMMITMENTS AS PART OF A BACKGROUND
             10      CHECK FOR THE PURCHASE OF A FIREARM.
             11      This act affects sections of Utah Code Annotated 1953 as follows:
             12      AMENDS:
             13          53-10-208, as last amended by Chapter 187 and renumbered and amended by Chapter 263,
             14      Laws of Utah 1998
             15          62A-12-234, as last amended by Chapter 285, Laws of Utah 1993
             16          62A-12-247, as last amended by Chapter 161, Laws of Utah 1989
             17      Be it enacted by the Legislature of the state of Utah:
             18          Section 1. Section 53-10-208 is amended to read:
             19           53-10-208. Definition -- Magistrates and court clerks to supply information --
             20      Offenses included on statewide warrant system -- Transportation fee to be included --
             21      Statewide warrant system responsibility -- Quality control -- Training -- Technical support
             22      -- Transaction costs.
             23          (1) "Statewide warrant system" means the portion of the state court computer system that
             24      is accessible by modem from the state mainframe computer and contains:
             25          (a) records of criminal warrant information; and
             26          (b) after notice and hearing, records of protective orders issued pursuant to:
             27          (i) Title 30, Chapter 6, Cohabitant Abuse Act; or


             28          (ii) Title 77, Chapter 36, Cohabitant Abuse Procedures Act.
             29          (2) Every magistrate or clerk of a court responsible for court records in this state shall,
             30      within 30 days of the disposition and on forms and in the manner provided by the division, furnish
             31      the division with information pertaining to:
             32          (a) all dispositions of criminal matters, including:
             33          (i) guilty pleas[,];
             34          (ii) convictions[,];
             35          (iii) dismissals[,];
             36          (iv) acquittals[,];
             37          (v) pleas held in abeyance[, or probations granted, within 30 days of the disposition and
             38      on forms and in the manner provided by the division];
             39          (vi) judgments of not guilty by reason of insanity;
             40          (vii) judgments of guilty and mentally ill;
             41          (viii) findings of mental incompetence to stand trial;
             42          (ix) current orders of civil commitment under the terms of Section 62A-12-234 ; or
             43          (x) probations granted;
             44          (b) the issuance, recall, cancellation, or modification of all warrants of arrest or
             45      commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 78-32-4 , within
             46      one day of the action and in a manner provided by the division; and
             47          (c) protective orders issued after notice and hearing, pursuant to:
             48          (i) Title 30, Chapter 6, Cohabitant Abuse Act; or
             49          (ii) Title 77, Chapter 36, Cohabitant Abuse Procedures Act.
             50          (3) (a) (i) The division shall include on the statewide warrant system all warrants issued
             51      for felony offenses and class A, B, and C misdemeanor offenses in the state.
             52          (ii) For each offense the division shall indicate whether the magistrate ordered under
             53      Section 77-7-5 and Rule 6, Utah Rules of Criminal Procedure, that the accused appear in court.
             54          (b) Infractions shall not be included on the statewide warrant system, including any
             55      subsequent failure to appear warrants issued on an infraction.
             56          (4) The division is the agency responsible for the statewide warrant system and shall:
             57          (a) ensure quality control of all warrants of arrest or commitment and protective orders
             58      contained in the statewide warrant system by conducting regular validation checks with every clerk


             59      of a court responsible for entering the information on the system;
             60          (b) upon the expiration of the protective orders and in the manner prescribed by the
             61      division, purge information regarding protective orders described in Subsection (2)(c) within 30
             62      days of the time after expiration;
             63          (c) establish system procedures and provide training to all criminal justice agencies having
             64      access to information contained on the state warrant system;
             65          (d) provide technical support, program development, and systems maintenance for the
             66      operation of the system; and
             67          (e) pay data processing and transaction costs for state, county, and city law enforcement
             68      agencies and criminal justice agencies having access to information contained on the state warrant
             69      system.
             70          (5) (a) Any data processing or transaction costs not funded by legislative appropriation
             71      shall be paid on a pro rata basis by all agencies using the system during the fiscal year.
             72          (b) This subsection supersedes any conflicting provision in Subsection (4)(e).
             73          Section 2. Section 62A-12-234 is amended to read:
             74           62A-12-234. Involuntary commitment under court order -- Examination -- Hearing
             75      -- Power of court -- Findings required -- Costs.
             76          (1) Proceedings for involuntary commitment of an individual who is 18 years of age or
             77      older may be commenced by filing a written application with the district court of the county in
             78      which the proposed patient resides or is found, by a responsible person who has reason to know
             79      of the condition or circumstances of the proposed patient which lead to the belief that the
             80      individual is mentally ill and should be involuntarily committed. That application shall be
             81      accompanied by:
             82          (a) a certificate of a licensed physician or a designated examiner stating that within a
             83      seven-day period immediately preceding the certification the physician or designated examiner has
             84      examined the individual, and that he is of the opinion that the individual is mentally ill and should
             85      be involuntarily committed; or
             86          (b) a written statement by the applicant that the individual has been requested to but has
             87      refused to submit to an examination of mental condition by a licensed physician or designated
             88      examiner. That application shall be sworn to under oath and shall state the facts upon which the
             89      application is based.


             90          (2) Prior to issuing a judicial order, the court may require the applicant to consult with the
             91      appropriate local mental health authority, or may direct a mental health professional from that local
             92      mental health authority to interview the applicant and the proposed patient to determine the
             93      existing facts and report them to the court.
             94          (3) If the court finds from the application, from any other statements under oath, or from
             95      any reports from a mental health professional that there is a reasonable basis to believe that the
             96      proposed patient's mental condition and [immediate] danger to himself, others, or property requires
             97      involuntary commitment pending examination and hearing; or, if the proposed patient has refused
             98      to submit to an interview with a mental health professional as directed by the court or to go to a
             99      treatment facility voluntarily, the court may issue an order, directed to a mental health officer or
             100      peace officer, to immediately place the proposed patient in the custody of a local mental health
             101      authority or in a temporary emergency facility as provided in Section 62A-12-237 to be detained
             102      for the purpose of examination. Within 24 hours of the issuance of the order for examination, a
             103      local mental health authority or its designee shall report to the court, orally or in writing, whether
             104      the patient is, in the opinion of the examiners, mentally ill, whether the patient has agreed to
             105      become a voluntary patient under Section 62A-12-228 , and whether treatment programs are
             106      available and acceptable without court proceedings. Based on that information, the court may,
             107      without taking any further action, terminate the proceedings and dismiss the application. In any
             108      event, if the examiner reports orally, he shall immediately send the report in writing to the clerk
             109      of the court.
             110          (4) Notice of commencement of proceedings for involuntary commitment, setting forth
             111      the allegations of the application and any reported facts, together with a copy of any official order
             112      of detention, shall be provided by the court to a proposed patient prior to, or upon, placement in
             113      the custody of a local mental health authority or, with respect to any individual presently in the
             114      custody of a local mental health authority whose status is being changed from voluntary to
             115      involuntary, upon the filing of an application for that purpose with the court. A copy of that order
             116      of detention shall be maintained at the place of detention.
             117          (5) Notice of commencement of those proceedings shall be provided by the court as soon
             118      as practicable to the applicant, any legal guardian, any immediate adult family members, legal
             119      counsel for the parties involved, and any other persons whom the proposed patient or the court
             120      shall designate. That notice shall advise those persons that a hearing may be held within the time


             121      provided by law. If the patient has refused to permit release of information necessary for
             122      provisions of notice under this subsection, the extent of notice shall be determined by the court.
             123          (6) Proceedings for commitment of an individual under the age of 18 years to the division
             124      may be commenced by filing a written application with the juvenile court in accordance with the
             125      provisions of Part 2A.
             126          (7) The district court may, in its discretion, transfer the case to any other district court
             127      within this state, provided that the transfer will not be adverse to the interest of the proposed
             128      patient.
             129          (8) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, of the issuance
             130      of a judicial order, or after commitment of a proposed patient to a local mental health authority
             131      under court order for detention or examination, the court shall appoint two designated examiners
             132      to examine the proposed patient. If requested by the proposed patient's counsel, the court shall
             133      appoint, as one of the examiners, a reasonably available qualified person designated by counsel.
             134      The examinations, to be conducted separately, shall be held at the home of the proposed patient,
             135      a hospital or other medical facility, or at any other suitable place that is not likely to have a harmful
             136      effect on the patient's health.
             137          (b) A time shall be set for a hearing to be held within ten court days of the appointment
             138      of the designated examiners, unless those examiners or a local mental health authority or its
             139      designee informs the court prior to that hearing date that the patient is not mentally ill, that he has
             140      agreed to become a voluntary patient under Section 62A-12-228 , or that treatment programs are
             141      available and acceptable without court proceedings, in which event the court may, without taking
             142      any further action, terminate the proceedings and dismiss the application.
             143          (9) (a) Prior to the hearing, an opportunity to be represented by counsel shall be afforded
             144      to every proposed patient, and if neither the patient nor others provide counsel, the court shall
             145      appoint counsel and allow him sufficient time to consult with the patient prior to the hearing. In
             146      the case of an indigent patient, the payment of reasonable attorneys' fees for counsel, as determined
             147      by the court, shall be made by the county in which the patient resides or was found.
             148          (b) The proposed patient, the applicant, and all other persons to whom notice is required
             149      to be given shall be afforded an opportunity to appear at the hearing, to testify, and to present and
             150      cross-examine witnesses. The court may, in its discretion, receive the testimony of any other
             151      person. The court may allow a waiver of the patient's right to appear only for good cause shown,


             152      and that cause shall be made a matter of court record.
             153          (c) The court is authorized to exclude all persons not necessary for the conduct of the
             154      proceedings and may, upon motion of counsel, require the testimony of each examiner to be given
             155      out of the presence of any other examiners.
             156          (d) The hearing shall be conducted in as informal a manner as may be consistent with
             157      orderly procedure, and in a physical setting that is not likely to have a harmful effect on the mental
             158      health of the proposed patient.
             159          (e) The court shall receive all relevant and material evidence which is offered, subject to
             160      the rules of evidence.
             161          (f) A local mental health authority or its designee, or the physician in charge of the
             162      patient's care shall, at the time of the hearing, provide the court with the following information:
             163          (i) the detention order;
             164          (ii) admission notes;
             165          (iii) the diagnosis;
             166          (iv) any doctors' orders;
             167          (v) progress notes;
             168          (vi) nursing notes; and
             169          (vii) medication records pertaining to the current commitment.
             170          That information shall also be supplied to the patient's counsel at the time of the hearing,
             171      and at any time prior to the hearing upon request.
             172          (10) The court shall order commitment of an individual who is 18 years of age or older to
             173      a local mental health authority if, upon completion of the hearing and consideration of the record,
             174      the court finds by clear and convincing evidence that:
             175          (a) the proposed patient has a mental illness;
             176          (b) because of the proposed patient's mental illness he poses an immediate danger of
             177      physical injury to others or himself, which may include the inability to provide the basic necessities
             178      of life such as food, clothing, and shelter, if allowed to remain at liberty;
             179          (c) the patient lacks the ability to engage in a rational decision-making process regarding
             180      the acceptance of mental treatment as demonstrated by evidence of inability to weigh the possible
             181      costs and benefits of treatment;
             182          (d) there is no appropriate less-restrictive alternative to a court order of commitment; and


             183          (e) the local mental health authority can provide the individual with treatment that is
             184      adequate and appropriate to his conditions and needs. In the absence of the required findings of
             185      the court after the hearing, the court shall forthwith dismiss the proceedings.
             186          (11) (a) The order of commitment shall designate the period for which the individual shall
             187      be treated. When the individual is not under an order of commitment at the time of the hearing,
             188      that period may not exceed six months without benefit of a review hearing. Upon such a review
             189      hearing, to be commenced prior to the expiration of the previous order, an order for commitment
             190      may be for an indeterminate period, if the court finds by clear and convincing evidence that the
             191      required conditions in Subsection (10) will last for an indeterminate period.
             192          (b) The court shall maintain a current list of all patients under its order of commitment.
             193      That list shall be reviewed to determine those patients who have been under an order of
             194      commitment for the designated period. At least two weeks prior to the expiration of the designated
             195      period of any order of commitment still in effect, the court that entered the original order shall
             196      inform the appropriate local mental health authority or its designee. The local mental health
             197      authority or its designee shall immediately reexamine the reasons upon which the order of
             198      commitment was based. If the local mental health authority or its designee determines that the
             199      conditions justifying that commitment no longer exist, it shall discharge the patient from
             200      involuntary commitment and immediately report that to the court. Otherwise, the court shall
             201      immediately appoint two designated examiners and proceed under Subsections (8) through (10).
             202          (c) The local mental health authority or its designee responsible for the care of a patient
             203      under an order of commitment for an indeterminate period, shall at six-month intervals reexamine
             204      the reasons upon which the order of indeterminate commitment was based. If the local mental
             205      health authority or its designee determines that the conditions justifying that commitment no longer
             206      exist, that local mental health authority or its designee shall discharge the patient from its custody
             207      and immediately report the discharge to the court. If the local mental health authority or its
             208      designee determines that the conditions justifying that commitment continue to exist, the local
             209      mental health authority or its designee shall send a written report of those findings to the court.
             210      The patient and his counsel of record shall be notified in writing that the involuntary commitment
             211      will be continued, the reasons for that decision, and that the patient has the right to a review
             212      hearing by making a request to the court. Upon receiving the request, the court shall immediately
             213      appoint two designated examiners and proceed under Subsections (8) through (10).


             214          (12) In the event that the designated examiners are unable, because a proposed patient
             215      refuses to submit to an examination, to complete that examination on the first attempt, the court
             216      shall fix a reasonable compensation to be paid to those designated examiners for their services.
             217          (13) Any person committed as a result of an original hearing or a person's legally
             218      designated representative who is aggrieved by the findings, conclusions, and order of the court
             219      entered in the original hearing has the right to a new hearing upon a petition filed with the court
             220      within 30 days of the entry of the court order. The petition must allege error or mistake in the
             221      findings, in which case the court shall appoint three impartial designated examiners previously
             222      unrelated to the case to conduct an additional examination of the patient. The new hearing shall,
             223      in all other respects, be conducted in the manner otherwise permitted.
             224          (14) Costs of all proceedings under this section shall be paid by the county in which the
             225      proposed patient resides or is found.
             226          Section 3. Section 62A-12-247 is amended to read:
             227           62A-12-247. Confidentiality of information and records -- Exceptions -- Penalty.
             228          (1) All certificates, applications, records, and reports made for the purpose of this part,
             229      including those made on judicial proceedings for involuntary commitment, that directly or
             230      indirectly identify a patient or former patient or an individual whose commitment has been sought
             231      under this part, shall be kept confidential and may not be disclosed by any person except insofar
             232      as:
             233          (a) the individual identified or his legal guardian, if any, or, if a minor, his parent or legal
             234      guardian shall consent;
             235          (b) disclosure may be necessary to carry out [any of] the provisions of:
             236          (i) this part; or
             237          (ii) Section 53-10-208 ; or
             238          (c) a court may direct, upon its determination that disclosure is necessary for the conduct
             239      of proceedings before it, and that failure to make the disclosure would be contrary to the public
             240      interest.
             241          (2) A person who [violates any provision of] knowingly and intentionally discloses any
             242      information not authorized by this section is guilty of a class B misdemeanor.





Legislative Review Note
    as of 11-22-99 3:00 PM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


Committee Note

The Judiciary Interim Committee recommended this bill.


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