House of Representatives
State of Utah
UTAH STATE CAPITOL COMPLEX . 350 STATE CAPITOL
Graphic file number 0 named letter~1.jpg with height 78 p and width 81 p Left aligned
P.O. BOX 145030 . SALT LAKE CITY, UTAH 84114-5030 . (801) 538-1029
February 27, 2012
Madam Speaker:
The Judiciary Committee reports a favorable recommendation on H.B. 346, AMENDMENTS
REGARDING COMPETENCY TO STAND TRIAL, by Representative L. Christensen, with the
following amendments:
1. Page
1, Lines 15 through 19
:
15
trial to
{
include
}
provide
for the court's consideration
{
all available and
relevant evidence
}
the totality of the circumstances
,
16 including
{
testimony of witnesses who have been in contact with the
defendant
}
testimony of lay witnesses
{
; and
17 . provides that a defendant who is not restored to competency to stand trial after
18 forensic treatment shall be temporarily detained and undergo civil commitment
19 proceedings
2. Page 1, Line 27 through Page 2, Line 28 :
27
{
77-15-6, as last amended by Laws of Utah 2008, Chapter 212
28 77-15-6.5, as last amended by Laws of Utah 2008, Chapter 212
3. Page 5, Lines 130 through 133 :
130 (11)
{
(a) The court, in
}
In
determining the defendant's competency to
stand trial,
the court
shall
131 consider the totality of the circumstances, which
{
includes
}
may include
{
the information presented under
132 Subsection (11)(b)
the testimony of lay witnesses,
in addition to the expert
testimony, studies, and reports provided under this
133
section.
133
4. Page 5, Lines 134 through 141 :
134
{
(b) The information to be considered by the court shall include all available
and
135 relevant evidence, witnesses, and testimony to ensure that there is no manipulation of the
136 process or a wrongful or artificial attempt or motivation on the part of the defendant to avoid
137 being found competent to stand trial.
138 (c) All witnesses and evidence regarding the defendant's personal contact with
139 individuals which may relate to the competency of the defendant to stand trial shall be
140 considered by the court and applied to its determination of the defendant's competency under
141 this section.
5. Page 6, Line 182 through Page 12, Line 360 :
182
{
Section 2.
Section
77-15-6
is amended to read:
183 77-15-6. Commitment on finding of incompetency to stand trial -- Subsequent
184 hearings -- Notice to prosecuting attorneys.
185 (1) Except as provided in Subsection (5), if after hearing[,] the person is found to be
186 incompetent to stand trial, the court shall order the defendant committed to the custody of the
187 executive director of the Department of Human Services or his designee for the purpose of
188 treatment intended to restore the defendant to competency. The court may recommend but not
189 order placement of the defendant. The court may, however, order that the defendant be placed
190 in a secure setting rather than a nonsecure setting. The director or his designee shall designate
191 the specific placement of the defendant during the period of evaluation and treatment to restore
192 competency.
193 (2) The examiner or examiners designated by the executive director to assess the
194 defendant's progress toward competency may not be involved in the routine treatment of the
195 defendant. The examiner or examiners shall provide a full report to the court and prosecuting
196 and defense attorneys within 90 days of arrival of the defendant at the treating facility. If any
197 examiner is unable to complete the assessment within 90 days, that examiner shall provide to
198 the court and counsel a summary progress report which informs the court that additional time is
199 necessary to complete the assessment, in which case the examiner shall have up to an
200 additional 90 days to provide the full report. The full report shall assess:
201 (a) the facility's or program's capacity to provide appropriate treatment for the
202 defendant;
203 (b) the nature of treatments provided to the defendant;
204 (c) what progress toward competency restoration has been made with respect to the
205 factors identified by the court in its initial order;
206 (d) the defendant's current level of mental disorder or mental retardation and need for
207 treatment, if any; and
208 (e) the likelihood of restoration of competency and the amount of time estimated to
209 achieve it.
210 (3) The court on its own motion or upon motion by either party or by the executive
211 director may appoint additional mental health examiners to examine the defendant and advise
212 the court on his current mental status and progress toward competency restoration.
213 (4) Upon receipt of the full report, the court shall hold a hearing to determine the
214 defendant's current status. At the hearing, the burden of proving that the defendant is
215 competent is on the proponent of competency. Following the hearing, the court shall determine
216 by a preponderance of evidence whether the defendant is:
217 (a) competent to stand trial;
218 (b) incompetent to stand trial with a substantial probability that the defendant may
219 become competent in the foreseeable future; or
220 (c) incompetent to stand trial without a substantial probability that the defendant may
221 become competent in the foreseeable future.
222 (5) (a) If the court enters a finding pursuant to Subsection (4)(a), the court shall
223 proceed with the trial or such other procedures as may be necessary to adjudicate the charges.
224 (b) If the court enters a finding pursuant to Subsection (4)(b), the court may order that
225 the defendant remain committed to the custody of the executive director of the Department of
226 Human Services or his designee for the purpose of treatment intended to restore the defendant
227 to competency.
228 (c) If the court enters a finding pursuant to Subsection (4)(c), the court shall order [the
229 defendant released from the custody of the director unless the prosecutor informs the court]
230 that commitment proceedings pursuant to Title 62A, Chapter 5, Services [to] for People with
231 Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act, will be
232 initiated. These commitment proceedings must be initiated within seven days after the court's
233 order entering the finding in Subsection (4)(c), unless the court enlarges the time for good
234 cause shown. The defendant may be ordered to remain in the custody of the director until
235 commitment proceedings have been concluded. If the defendant is committed, the court which
236 entered the order pursuant to Subsection (4)(c), shall be notified by the director at least 10 days
237 prior to any release of the committed person.
238 (6) If the defendant is recommitted to the department pursuant to Subsection (5)(b), the
239 court shall hold a hearing one year following the recommitment.
240 (7) At the hearing held pursuant to Subsection (6), except for defendants charged with
241 the crimes listed in Subsection (8), a defendant who has not been restored to competency shall
242 be [ordered released or] temporarily detained pending civil commitment proceedings under the
243 same terms as provided in Subsection (5)(c).
244 (8) If the defendant has been charged with aggravated murder, murder, attempted
245 murder, manslaughter, or a first degree felony and the court determines that the defendant is
246 making reasonable progress towards restoration of competency at the time of the hearing held
247 pursuant to Subsection (6), the court may order the defendant recommitted for a period not to
248 exceed 18 months for the purpose of treatment to restore the defendant to competency with a
249 mandatory review hearing at the end of the 18-month period.
250 (9) Except for defendants charged with aggravated murder or murder, a defendant who
251 has not been restored to competency at the time of the hearing held pursuant to Subsection (8)
252 shall be [ordered released or] temporarily detained pending civil commitment proceedings
253 under the same terms as provided in Subsection (5)(c).
254 (10) If the defendant has been charged with aggravated murder or murder and the court
255 determines that he is making reasonable progress towards restoration of competency at the time
256 of the mandatory review hearing held pursuant to Subsection (8), the court may order the
257 defendant recommitted for a period not to exceed 36 months for the purpose of treatment to
258 restore him to competency.
259 (11) If the defendant is recommitted to the department pursuant to Subsection (10), the
260 court shall hold a hearing no later than at 18-month intervals following the recommitment for
261 the purpose of determining the defendant's competency status.
262 (12) A defendant who has not been restored to competency at the expiration of the
263 additional 36-month commitment period ordered pursuant to Subsection (10) shall be [ordered
264 released or] temporarily detained pending civil commitment proceedings under the same terms
265 as provided in Subsection (5)(c).
266 (13) In no event may the maximum period of detention under this section exceed the
267 maximum period of incarceration which the defendant could receive if he were convicted of
268 the charged offense. This Subsection (13) does not preclude pursuing involuntary civil
269 commitment nor does it place any time limit on civil commitments.
270 (14) Neither release from a pretrial incompetency commitment under the provisions of
271 this section nor civil commitment requires dismissal of criminal charges. The court
may retain
272
jurisdiction over the criminal case and may order periodic reviews to assess the
defendant's
273
competency to stand trial.
274
(15) A defendant who is civilly committed pursuant to Title 62A, Chapter 5,
Services
275
[to] for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and
Mental Health
276
Act, may still be adjudicated competent to stand trial under this chapter.
277
(16) (a) The remedy for a violation of the time periods specified in this section,
other
278
than those specified in Subsection (5)(c), (7), (9), (12), or (13), shall be a motion to
compel the
279
hearing, or mandamus, but not release from detention or dismissal of the criminal
charges.
280
(b) The remedy for a violation of the time periods specified in Subsection (5)(c),
(7),
281
(9), (12), or (13) shall not be dismissal of the criminal charges.
282
(17) In cases in which the treatment of the defendant is precluded by court
order for a
283
period of time, that time period may not be considered in computing time limitations
under this
284
section.
285
(18) At any time that the defendant becomes competent to stand trial, the
clinical
286
director of the hospital or other facility or the executive director of the Department
of Human
287
Services shall certify that fact to the court. The court shall conduct a hearing within
15
288
working days of the receipt of the clinical director's or executive director's report,
unless the
289
court enlarges the time for good cause.
290
(19) The court may order a hearing or rehearing at any time on its own motion
or upon
291 recommendations of the clinical director of the hospital or other facility or the executive
292 director of the Department of Human Services.
293 (20) Notice of a hearing on competency to stand trial shall be given to the prosecuting
294 attorney. If the hearing is held in the county where the defendant is confined, notice shall also
295 be given to the prosecuting attorney for that county.
296 Section 3. Section 77-15-6.5 is amended to read:
297 77-15-6.5. Petition for involuntary medication of incompetent defendant.
298 (1) As used in this section:
299 (a) "Executive director" means the executive director of the Department of Human
300 Services or the executive director's designee.
301 (b) "Final order" means a court order that determines the rights of the parties and
302 concerning which appellate remedies have been exhausted or the time for appeal has expired.
303 (2) (a) At any time after a defendant has been found incompetent to proceed and has
304 been committed to the Department of Human Services under Section 77-15-6 for treatment to
305 restore competency, the executive director shall notify the court, prosecuting attorney, and
306 attorney for the defendant if the executive director has determined that the defendant is not
307 responding to treatment and is unlikely to be restored to competency without the involuntary
308 administration of antipsychotic medication.
309 (b) The executive director shall provide the notification under Subsection (2)(a) only if
310 there is no basis for involuntarily medicating the defendant for reasons other than to restore the
311 defendant's competency.
312 (3) In the notice under Subsection (2)(a), the executive director shall state whether the
313 executive director believes:
314 (a) medication is necessary to render the defendant competent;
315 (b) medication is substantially likely to render the defendant competent;
316 (c) medication is substantially unlikely to produce side effects which would
317 significantly interfere with the defendant's ability to assist in his defense;
318 (d) no less intrusive means are available, and whether any of those means have been
319 attempted to render the defendant competent; and
320 (e) medication is medically appropriate and is in the defendant's best medical interest
321 in light of his medical condition.
322 (4) (a) Upon receipt of the notice under Subsection (2)(a), the court shall conduct a
323 hearing within 30 days, unless the court extends the time for good cause, to determine whether
324 the court should convene a hearing regarding the involuntary medication of the defendant.
325 (b) The prosecuting attorney shall represent the state at any hearing under this section.
326 (c) The court shall consider whether the following factors apply in determining
327 whether the defendant should be involuntarily medicated:
328 (i) important state interests are at stake in restoring the defendant's competency;
329 (ii) involuntary medication will significantly further the important state interests, in
330 that the medication proposed:
331 (A) is substantially likely to render the defendant competent to stand trial; and
332 (B) is substantially unlikely to produce side effects which would significantly interfere
333 with the defendant's ability to assist the defense counsel in conducting his defense;
334 (iii) involuntary medication is necessary to further important state interests, because
335 any alternate less intrusive treatments are unlikely to achieve substantially the same results; and
336 (iv) the administration of the proposed medication is medically appropriate, as it is in
337 the defendant's best medical interest in light of his medical condition.
338 (5) In determining whether the proposed treatment is medically appropriate and is in
339 the defendant's best medical interest, the potential penalty the defendant may be subject to, if
340 the defendant is convicted of any charged offense, is not a relevant consideration.
341 (6) (a) If the court finds by clear and convincing evidence that the involuntary
342 administration of antipsychotic medication is appropriate, it shall make findings addressing
343 each of the factors in Subsection (4)(c) and shall issue an order authorizing the Department of
344 Human Services to involuntarily administer antipsychotic medication to the defendant in order
345 to restore his competency, subject to the periodic reviews and other procedures provided in
346 Section 77-15-6 .
347 (b) When issuing an order under Subsection (6)(a), the court shall consider ordering
348 less intrusive means for administering the drugs, such as a court order to the defendant
349 enforceable by the contempt power, before ordering more intrusive methods of involuntary
350 medication.
351 (7) The provisions in Section 77-15-6 establishing time limitations for treatment of
352 incompetent defendants before they must [be either released or civilly committed] undergo
353 civil commitment proceedings are tolled from the time the executive director gives notice to
354 the court and the parties under Subsection (2) until:
355 (a) the court has issued a final order for the involuntary medication of the defendant,
356 and the defendant has been medicated under that order; or
357 (b) the court has issued a final order that the defendant will not be involuntarily
358 medicated.
359 (8) This section applies only when the prosecution seeks an order of involuntary
360 medication solely for the purpose of rendering a defendant competent to proceed. }
Respectfully,
Kay L. McIff
Committee Chair
Voting: 10-0-3
3 HB0346.HC1.wpd 2/27/12 9:17 am jdhowe/JDH SCA/NWB
Bill Number
Action Code
*HB0346*
*HCRAMD*
HB0346
HCRAMD