HB553 HD1.DOC

SECTION 1. Section 704-404, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) Upon suspension of further proceedings in the prosecution, the court shall appoint [~~three qualified examiners in felony cases, and~~] one qualified examiner [~~in nonfelony cases,~~] to examine and report upon the defendant's fitness to proceed. [In felony cases, the court shall appoint as examiners at least one psychiatrist and at least one licensed psychologist. The third examiner may be a psychiatrist, licensed psychologist, or qualified physician. One of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health. In nonfelony cases, the court may appoint as examiners either a psychiatrist or a licensed psychologist. All examiners shall be appointed] An examiner shall be a psychiatrist or a licensed psychologist designated by the director of health from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted while the defendant is in custody or on release or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or a longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered."

SECTION 2. Section 704-404, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) Upon suspension of further proceedings in the prosecution, the court shall appoint three qualified examiners in felony cases, and one qualified examiner in nonfelony cases, to examine and report upon the defendant's fitness to proceed. In felony cases, the court shall appoint as examiners at least one psychiatrist and at least one licensed psychologist. The third examiner may be a psychiatrist, licensed psychologist, or qualified physician. One of the three examiners shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases, the court may appoint as examiners either a psychiatrist or a licensed psychologist. [~~An examiner shall be a psychiatrist or a licensed psychologist designated by the director of health~~] All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted while the defendant is in custody or on release or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or a longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3) and "qualified physician" means a physician qualified by the court for the specific evaluation ordered."

SECTION 3. Section 704-406, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, has reason to believe that the defendant has regained fitness to proceed, for a defendant charged with the offense of murder in the first or second degree, attempted murder in the first or second degree, [~~or a~~] class A felony, [~~the court shall appoint three qualified examiners and may appoint in all~~] or all other cases, the court shall appoint one qualified examiner, to examine and report upon the physical and mental condition of the defendant. [In cases in which the defendant has been charged with murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, the court shall appoint as examiners at least one psychiatrist and at least one licensed psychologist. The third examiner may be a psychiatrist, licensed psychologist, or qualified physician. One of the three examiners] The examiner shall be a psychiatrist or licensed psychologist designated by the director of health [from within the department of health. In all other cases, the one qualified examiner shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health]. The court, in appropriate circumstances, may appoint an additional examiner or examiners. All additional examiners shall be appointed from a list of certified examiners as determined by the department of health. After a hearing, if a hearing is requested, if the court determines that the defendant has regained fitness to proceed, the penal proceeding shall be resumed and the defendant shall no longer be committed to the custody of the director of health. In cases where a defendant is charged with the offense of murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, upon the request of the prosecuting attorney or the defendant, and in consideration of information provided by the defendant's clinical team, the court may order that the defendant remain in the custody of the director of health, for good cause shown, subject to bail or until a judgment on the verdict or a finding of guilt after a plea of guilty or nolo contendere. Thereafter, the court may consider a request from the director of health to rescind its order maintaining the defendant in the director's custody, for good cause shown. As used in this section, the term "qualified physician" means a physician qualified by the court for the specific evaluation ordered. If, however, the court [~~is of the view that so much time has elapsed~~] determines the time elapsed since the defendant's commitment or release on conditions [~~of the defendant that it would be unjust to resume~~] creates an injustice if the proceeding[,] resumed, the court may dismiss the charge and:

(a) Order the defendant to be discharged;

(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or

(c) Subject to section 334-121 regarding assisted community treatment criteria, order the defendant to be released on conditions the court determines necessary."

SECTION 4. Act 231, Session Laws of Hawaii 2016, is amended by amending section 72 to read as follows:

"SECTION 72. This Act shall take effect on July 1, 2016; provided that:

(1) Sections [5,] 9[,] and 12 shall take effect on July 1, 2018; and

(2) Section 64 shall take effect on June 30, 2016, and the amendments made to section 806-73(b), Hawaii Revised Statutes, in section 64 of this Act shall not be repealed when section 806-73(b), Hawaii Revised Statutes, is repealed and reenacted on July 1, 2016, pursuant to Act 119, Session Laws of Hawaii 2011."

SECTION 5. Act 231, Session Laws of Hawaii 2016, is amended by repealing section 5:

["~~SECTION 5. Section 704-404, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:~~

"(2) Upon suspension of further proceedings in the prosecution, the court shall appoint three qualified examiners in felony cases, and one qualified examiner in nonfelony cases, to examine and report upon the physical and mental condition of the defendant. In felony cases, the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, licensed psychologist, or qualified physician. One of the three shall be a psychiatrist or licensed psychologist designated by the director of health from within the department of health. In nonfelony cases, the court may appoint either a psychiatrist or a licensed psychologist. All examiners shall be appointed from a list of certified examiners as determined by the department of health. The court, in appropriate circumstances, may appoint an additional examiner or examiners. The examination may be conducted while the defendant is in custody or on release or, in the court's discretion, when necessary the court may order the defendant to be committed to a hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty days, or a longer period as the court determines to be necessary for the purpose. The court may direct that one or more qualified physicians or psychologists retained by the defendant be permitted to witness the examination. As used in this section, the term "licensed psychologist" includes psychologists exempted from licensure by section 465-3(a)(3).""]

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2050; provided that:

(1) Section 1 of this Act is repealed on July 1, 2022;

(2) Section 2 of this Act shall take effect on July 1, 2022; and

(3) Section 704-406(3) shall be repealed on July 1, 2022 and shall be reenacted in the form in which it read on the day before the effective date of this Act.

HOUSE OF REPRESENTATIVES	H.B. NO.	553
TWENTY-NINTH LEGISLATURE, 2017		H.D. 1
STATE OF HAWAII