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:
may retain
Respectfully,
Kay L. McIff
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)
}
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
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.
}
Committee Chair
Voting: 10-0-3
3 HB0346.HC1.wpd 2/27/12 9:17 am jdhowe/JDH SCA/NWB
Bill Number
*HB0346*
HB0346