HB1842

SECTION 1. Chapter 704, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§704- Effect of finding of unfitness to proceed for defendants charged with a non-violent petty misdemeanor; criminal justice diversion program. (1) In cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence, if, at the appropriate hearing held pursuant to section 704-404(2)(a) or (b), the court determines that the defendant lacks fitness to proceed, the charges shall be dismissed with prejudice and the court shall order the defendant to be committed to the custody of the director of health and placed in an appropriate facility for assessment, care, and treatment for up to seven days.

(2) If the defendant's treatment team determines that the defendant meets the criteria in section 334-60.2 for involuntary hospitalization, the director of health shall file a petition for involuntary hospitalization pursuant to section 334-60.3 in the family court. If the petition is granted, the defendant shall remain hospitalized for a time period as provided by section 334-60.6.

(3) If the defendant's treatment team determines that:

(a) The defendant does not meet involuntary hospitalization criteria;

(b) The family court denies the petition for involuntary hospitalization; or

then the treatment team shall determine whether an assisted community treatment plan is appropriate pursuant to chapter 334, part VIII. If the treatment team so determines, the psychiatrist or advanced practice registered nurse from the treatment team shall prepare the certificate for assisted community treatment pursuant to section 334‑123. The treatment team shall identify a community mental health outpatient program that agrees to provide mental health services to the defendant in the community as the designated mental health program under the assisted community treatment order. The defendant may be held at the hospital or other suitable facility pending the family court hearing on the petition for assisted community treatment.

(4) If the petition for assisted community treatment pursuant to subsection (3) is:

(a) Granted, then the defendant shall be released for treatment with the designated mental health program once the assisted community treatment order is issued and the initial treatment consistent with the assisted community treatment plan is administered to the defendant; or

(b) Not granted, or the treatment team determines that an assistant community treatment order is not appropriate, then the defendant shall be referred to an appropriate outpatient mental health program for continued support, care, and treatment, and be discharged from the hospital or other suitable facility."

SECTION 2. Section 704-404, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (1) and (2) to read as follows:

"(1) Whenever there is reason to doubt the defendant's fitness to proceed, the court may immediately suspend all further proceedings in the prosecution; provided that for any defendant not subject to an order of commitment to a hospital for the purpose of the examination, neither the right to bail nor proceedings pursuant to chapter 804 shall be suspended. If a trial jury has been [~~empanelled,~~] empaneled, it shall be discharged or retained at the discretion of the court. The discharge of the trial jury shall not be a bar to further prosecution.

(2) Upon suspension of further proceedings in the prosecution[,]:

(a) In nonfelony cases, if a court-based certified examiner is available, the court shall appoint the court-based examiner to examine and provide an expedited report solely upon the issue of defendant's fitness to proceed. The court-based certified examiner shall file the examiner's report with the court within two days of the appointment of the examiner. A fitness determination hearing shall be held within two days of the filing of the report, or as soon thereafter as practicable;

(b) In nonfelony cases where a court-based certified examiner is not available, 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. The court may appoint either a psychiatrist or licensed psychologist as the examiner; and

(c) In felony cases, the court shall appoint three qualified examiners, to examine and report upon the defendant's fitness to proceed. The court shall appoint as examiners [~~at least one psychiatrist and at least one licensed psychologist. The third examiner may be a psychiatrist,~~] psychiatrists, licensed [~~psychologist,~~] psychologists, or qualified [~~physician.~~] physicians. 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.~~]

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."

2. By amending subsection (5) to read as follows:

"(5) [~~The~~] Except in the case of an examination pursuant to subsection (2)(a), the report of the examination for fitness to proceed shall include the following:

(a) A description of the nature of the examination;

(b) A diagnosis of the physical or mental condition of the defendant;

[~~(b)~~] (c) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense;

[~~(c)~~] (d) An assessment of the risk of danger to the defendant or to the person or property of others for consideration and determination of the defendant's release on conditions; and

[~~(d)~~] (e) Where more than one examiner is appointed, a statement that the opinion rendered was arrived at independently of any other examiner, unless there is a showing to the court of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report. After all reports are submitted to the court, examiners may confer without restriction."

3. By amending subsection (7) to read as follows:

"(7) [~~Three copies~~] A copy of the report of the examination, including any supporting documents, shall be filed with the clerk of the court[~~, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant~~]."

SECTION 3. Section 704-406, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended, except as provided in [~~section~~] sections 704-407[,] and 704- , and the court shall commit the defendant to the custody of the director of health to be placed in an appropriate institution for detention, assessment, care, and treatment; provided that the commitment shall be limited in certain cases as follows:

(a) When the defendant is charged with a petty misdemeanor not involving violence or attempted violence, the [~~commitment shall be limited to no longer than sixty days from the date the court determines the defendant lacks fitness to proceed;~~] defendant shall be diverted from the criminal justice system pursuant to section 704- ; and

(b) When the defendant is charged with a misdemeanor not involving violence or attempted violence, the commitment shall be limited to no longer than one hundred twenty days from the date the court determines the defendant lacks fitness to proceed.

If the court is satisfied that the defendant may be released on conditions without danger to the defendant or to another or risk of substantial danger to property of others, the court shall order the defendant's release, which shall continue at the discretion of the court, on conditions the court determines necessary; provided that the release on conditions of a defendant charged with [~~a petty misdemeanor not involving violence or attempted violence shall continue for no longer than sixty days, and the release on conditions of a defendant charged with a~~] misdemeanor not involving violence or attempted violence shall continue for no longer than one hundred twenty days. A copy of all reports filed pursuant to section 704-404 shall be attached to the order of commitment or order of release on conditions that is provided to the department of health. When the defendant is committed to the custody of the director of health for detention, care, and treatment, the county police departments shall provide to the director of health and the defendant copies of all police reports from cases filed against the defendant that have been adjudicated by the acceptance of a plea of guilty or nolo contendere, a finding of guilt, acquittal, acquittal pursuant to section 704-400, or by the entry of a plea of guilty or nolo contendere made pursuant to chapter 853; provided that the disclosure to the director of health and the defendant does not frustrate a legitimate function of the county police departments; provided further that expunged records, records of or pertaining to any adjudication or disposition rendered in the case of a juvenile, or records containing data from the United States National Crime Information Center shall not be provided. The county police departments shall segregate or sanitize from the police reports information that would result in the likely or actual identification of individuals who furnished information in connection with the investigation or who were of investigatory interest. No further disclosure of records shall be made except as provided by law."

SECTION 4. Section 704-411, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) When ordering a hearing pursuant to subsection (2):

(a) In nonfelony cases, the court shall appoint a qualified examiner to examine and report upon the physical and mental condition of the defendant. The court may appoint either a psychiatrist or a licensed psychologist. The examiner may be designated by the director of health from within the department of health. The examiner 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; and

(b) In felony cases, the court shall appoint three qualified examiners to examine and report upon the physical and mental condition of the defendant. In each case, the court shall appoint at least one psychiatrist and at least one licensed psychologist. The third member may be a psychiatrist, a licensed psychologist, or a 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. The three examiners shall be appointed from a list of certified examiners as determined by the department of health.

To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of examination for a period not exceeding thirty days or a longer period as the court determines to be necessary for the purpose upon written findings for good cause shown. The court may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accordance with section 704-404(3), (5)(a) and [~~(b),~~] (c), (7), (8), (9), (10), and (11). 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 5. Section 704-414, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Upon filing of an application pursuant to section 704-412 for discharge or conditional release, or upon the filing of an application pursuant to section 704-413 for discharge, 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, a licensed psychologist, or a 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. The examiners shall be appointed from a list of certified examiners as determined by the department of health. To facilitate the examination and the proceedings thereon, the court may cause the defendant, if not then confined, to be committed to a hospital or other suitable facility for the purpose of the examination and may direct that qualified physicians or psychologists retained by the defendant be permitted to witness the examination. The examination and report and the compensation of persons making or assisting in the examination shall be in accordance with section 704-404(3), (5)(a) and [~~(b),~~] (c), (7), (8), (9), (10), and (11). 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 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 upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1842
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII