Ohio § 2945.38

§ 2945.38.

(A) If the issue of a defendant's competence to stand trial is raised and if the court,

upon conducting the hearing provided for in section 2945.37 of the Revised Code , finds that the defendant is competent to stand trial, the defendant shall be proceeded

against as provided by law.  If the court finds the defendant competent to stand trial and the defendant is receiving

psychotropic drugs or other medication, the court may authorize the continued administration

of the drugs or medication or other appropriate treatment in order to maintain the

defendant's competence to stand trial, unless the defendant's attending physician

advises the court against continuation of the drugs, other medication, or treatment. (B)(1)(a)(i) If the defendant has been charged with a felony offense or a misdemeanor offense

of violence for which the prosecutor has not recommended the procedures under division

(B)(1)(a)(vi) of this section and if, after taking into consideration all relevant

reports, information, and other evidence, the court finds that the defendant is incompetent

to stand trial and that there is a substantial probability that the defendant will

become competent to stand trial within the time specified in division (C) of this

section if the defendant is provided with a course of treatment, the court shall order

the defendant to undergo treatment. (ii) If the defendant has been charged with a felony offense and if, after taking into

consideration all relevant reports, information, and other evidence, the court finds

that the defendant is incompetent to stand trial, but the court is unable at that

time to determine whether there is a substantial probability that the defendant will

become competent to stand trial within the time specified in division (C) of this

section if the defendant is provided with a course of treatment, the court shall order

continuing evaluation and treatment of the defendant for a period not to exceed four

months to determine whether there is a substantial probability that the defendant

will become competent to stand trial within the time specified in division (C) of

this section if the defendant is provided with a course of treatment. (iii) If the defendant has not been charged with a felony offense but has been charged

with a misdemeanor offense of violence and if, after taking into consideration all

relevant reports, information, and other evidence, the court finds that the defendant

is incompetent to stand trial, but the court is unable at that time to determine whether

there is a substantial probability that the defendant will become competent to stand

trial within the time frame permitted under division (C)(4) or (5) of this section,

the court may order continuing evaluation and treatment of the defendant for a period

not to exceed the maximum period permitted under that division. (iv) If the defendant has not been charged with a felony offense or a misdemeanor offense

of violence, but has been charged with a misdemeanor offense that is not a misdemeanor

offense of violence and if, after taking into consideration all relevant reports,

information, and other evidence, the court finds that the defendant is incompetent

to stand trial, but the court is unable at that time to determine whether there is

a substantial probability that the defendant will become competent to stand trial

within the time frame permitted under division (C)(4) or (5) of this section, the

court shall dismiss the charges and follow the process outlined in division (B)(1)(a)(v)(I)

of this section. (v) If the defendant has not been charged with a felony offense or a misdemeanor offense

of violence, or if the defendant has been charged with a misdemeanor offense of violence

and the prosecutor has recommended the procedures under division (B)(1)(a)(vi) of

this section, and if, after taking into consideration all relevant reports, information,

and other evidence, the trial court finds that the defendant is incompetent to stand

trial, the trial court shall do one of the following: (I) Dismiss the charges pending against the defendant.  A dismissal under this division is not a bar to further prosecution based on the

same conduct.  Upon dismissal of the charges, the trial court shall discharge the defendant unless

the court or prosecutor, after consideration of the requirements of section 5122.11 of the Revised Code , files an affidavit in probate court alleging that the defendant is a mentally ill

person subject to court order or a person with an intellectual disability subject

to institutionalization by court order.  If an affidavit is filed in probate court, the trial court may detain the defendant

for ten days pending a hearing in the probate court and shall send to the probate

court copies of all written reports of the defendant's mental condition that were

prepared pursuant to section 2945.371 of the Revised Code .  The trial court or prosecutor shall specify in the appropriate space on the affidavit

that the defendant is a person described in this subdivision. (II) Order the defendant to undergo outpatient competency restoration treatment at a facility

operated or certified by the department of mental health and addiction services as

being qualified to treat mental illness, at a public or community mental health facility,

at a jail that employs or contracts with an individual or entity listed in division

(B)(1)(b)(i) of this section to provide treatment or continuing evaluation and treatment

at a jail, or in the care of a psychiatrist or other mental health professional.  If a defendant who has been released on bail or recognizance refuses to comply with

court-ordered outpatient treatment under this division, the court may dismiss the

charges pending against the defendant and proceed under division (B)(1)(a)(v)(I) of

this section or may amend the conditions of bail or recognizance and order the sheriff

to take the defendant into custody and deliver the defendant to a center or facility

operated or certified by the department of mental health and addiction services for

treatment. (vi) If the defendant has not been charged with a felony offense but has been charged

with a misdemeanor offense of violence and after taking into consideration all relevant

reports, information, and other evidence, the court finds that the defendant is incompetent

to stand trial, the prosecutor in the case may recommend that the court follow the

procedures prescribed in division (B)(1)(a)(v) of this section.  If the prosecutor does not make such a recommendation, the court shall follow the

procedures in division (B)(1)(a)(i) of this section. (b)(i) The court order for the defendant to undergo treatment or continuing evaluation and

treatment under division (B)(1)(a) of this section shall specify that the defendant,

if determined to require mental health treatment or continuing evaluation and treatment,

shall be committed to one of the following: (I) The department of mental health and addiction services for treatment or continuing

evaluation and treatment at a hospital, facility, or agency, as determined to be clinically

appropriate by the department; (II) A facility certified by the department of mental health and addiction services as

being qualified to treat mental illness; (III) A public or community mental health facility; (IV) A jail that employs or contracts with an entity or individual listed in division

(B)(1)(b)(i) of this section to provide treatment or continuing evaluation and treatment

at a jail; (V) A psychiatrist or another mental health professional for treatment or continuing

evaluation and treatment. (ii) Prior to placing the defendant, the department of mental health and addiction services

shall obtain court approval for that placement following a hearing.  The court order for the defendant to undergo treatment or continuing evaluation

and treatment under division (B)(1)(a) of this section shall specify that the defendant,

if determined to require treatment or continuing evaluation and treatment for an intellectual

disability, shall receive treatment or continuing evaluation and treatment at an institution

or facility operated by the department of developmental disabilities, at a facility

certified by the department of developmental disabilities as being qualified to treat

intellectual disabilities, at a public or private intellectual disabilities facility,

or by a psychiatrist or another intellectual disabilities professional.  In any case, the order may restrict the defendant's freedom of movement as the court

considers necessary.  The prosecutor in the defendant's case shall send to the chief clinical officer

of the hospital, facility, or agency where the defendant is placed by the department

of mental health and addiction services, or to the managing officer or director of

the institution, facility, or jail, or the person to which the defendant is committed,

copies of relevant police reports and other background information that pertains to

the defendant and is available to the prosecutor unless the prosecutor determines

that the release of any of the information in the police reports or any of the other

background information to unauthorized persons would interfere with the effective

prosecution of any person or would create a substantial risk of harm to any person. (iii) In determining the place of commitment, the court shall consider the extent to which

the person is a danger to the person and to others, the need for security, the availability

of housing and supportive services, including outpatient mental health services in

the community, and the type of crime involved and shall order the least restrictive

alternative available that is consistent with public safety and treatment goals.  In weighing these factors, the court shall give preference to protecting public

safety and the availability of housing and supportive services. (c) If the defendant is found incompetent to stand trial, if the chief clinical officer

of the hospital, facility, or agency where the defendant is placed, or the managing

officer or director of the institution, facility, or jail, or the person to which

the defendant is committed for treatment or continuing evaluation and treatment under

division (B)(1)(b) of this section determines that medication is necessary to restore

the defendant's competency to stand trial, and if the defendant lacks the capacity

to give informed consent or refuses medication, the chief clinical officer of the

hospital, facility, or agency where the defendant is placed, or the managing officer

or director of the institution, facility, or jail, or the person to which the defendant

is committed for treatment or continuing evaluation and treatment may petition the

court for authorization for the involuntary administration of medication.  The court shall hold a hearing on the petition within five days of the filing of

the petition if the petition was filed in a municipal court or a county court regarding

an incompetent defendant charged with a misdemeanor or within ten days of the filing

of the petition if the petition was filed in a court of common pleas regarding an

incompetent defendant charged with a felony offense.  Following the hearing, the court may authorize the involuntary administration of

medication or may dismiss the petition. (2) If the court finds that the defendant is incompetent to stand trial and that, even

if the defendant is provided with a course of treatment, there is not a substantial

probability that the defendant will become competent to stand trial within the time

specified in division (C) of this section, the court shall order the discharge of

the defendant, unless upon motion of the prosecutor or on its own motion, the court

either seeks to retain jurisdiction over the defendant pursuant to section 2945.39 of the Revised Code or files an affidavit in the probate court for the civil commitment of the defendant

pursuant to Chapter 5122. or 5123. of the Revised Code alleging that the defendant

is a person with a mental illness subject to court order or a person with an intellectual

disability subject to institutionalization by court order.  If an affidavit is filed in the probate court, the trial court shall send to the

probate court copies of all written reports of the defendant's mental condition that

were prepared pursuant to section 2945.371 of the Revised Code . The trial court may issue the temporary order of detention that a probate court may

issue under section 5122.11 or 5123.71 of the Revised Code , to remain in effect until the probable cause or initial hearing in the probate court.  Further proceedings in the probate court are civil proceedings governed by Chapter

5122. or 5123. of the Revised Code. (C) No defendant shall be required to undergo treatment, including any continuing evaluation

and treatment, under division (B)(1) of this section for longer than whichever of

the following periods is applicable: (1) Three years, if the most serious offense with which the defendant is charged is one

of the following offenses: (a) Aggravated murder or murder; (b) An offense of violence for which a sentence of death or life imprisonment may be

imposed; (c) Complicity in committing an offense described in division (C)(1)(a) or (C)(1)(b)

of this section. (2) One year, if the most serious offense with which the defendant is charged is one

of the following offenses: (a) An offense of violence that is a felony of the first or second degree; (b) A conspiracy to commit or an attempt to commit an offense described in division (C)(1)

or (2) of this section if the conspiracy or attempt is a felony of the first or second

degree; (c) Complicity in committing an offense described in division (C)(2) of this section

if the complicity is a felony of the first or second degree. (3) Six months, if the most serious offense with which the defendant is charged is a

felony other than a felony described in division (C)(1) or (2) of this section; (4) Sixty days, if the most serious offense with which the defendant is charged is a

misdemeanor of the first or second degree; (5) Thirty days, if the most serious offense with which the defendant is charged is a

misdemeanor of the third or fourth degree, a minor misdemeanor, or an unclassified

misdemeanor. (D) Any defendant who is committed pursuant to this section shall not voluntarily admit

the defendant or be voluntarily admitted to a hospital or institution pursuant to section 5122.02 , 5122.15 , 5123.69 , or 5123.76 of the Revised Code . (E) Except as otherwise provided in this division, a defendant who is charged with an

offense and is committed by the court under this section to the department of mental

health and addiction services or is committed to an institution or facility for the

treatment of intellectual disabilities shall not be granted unsupervised on-grounds

movement, supervised off-grounds movement, or nonsecured status except in accordance

with the court order.  The court may grant a defendant supervised off-grounds movement to obtain medical

treatment or specialized habilitation treatment services if the person who supervises

the treatment or the continuing evaluation and treatment of the defendant ordered

under division (B)(1)(a) of this section informs the court that the treatment or continuing

evaluation and treatment cannot be provided at the hospital or facility where the

defendant is placed by the department of mental health and addiction services or the

institution, facility, or jail to which the defendant is committed.  The chief clinical officer of the hospital or facility where the defendant is placed

by the department of mental health and addiction services or the managing officer

or director of the institution, facility, or jail to which the defendant is committed,

or a designee of any of those persons, may grant a defendant movement to a medical

facility for an emergency medical situation with appropriate supervision to ensure

the safety of the defendant, staff, and community during that emergency medical situation.  The chief clinical officer of the hospital or facility where the defendant is placed

by the department of mental health and addiction services or the managing officer

or director of the institution, facility, or jail to which the defendant is committed

shall notify the court within twenty-four hours of the defendant's movement to the

medical facility for an emergency medical situation under this division. (F) The person who supervises the treatment or continuing evaluation and treatment of

a defendant ordered to undergo treatment or continuing evaluation and treatment under

division (B)(1)(a) of this section shall file a written report with the court at the

following times: (1) Whenever the person believes the defendant is capable of understanding the nature

and objective of the proceedings against the defendant and of assisting in the defendant's

defense; (2) For a felony offense, fourteen days before expiration of the maximum time for treatment

as specified in division (C) of this section and fourteen days before the expiration

of the maximum time for continuing evaluation and treatment as specified in division

(B)(1)(a) of this section, and, for a misdemeanor offense, ten days before the expiration

of the maximum time for treatment, as specified in division (C) of this section; (3) At a minimum, after each six months of treatment; (4) Whenever the person who supervises the treatment or continuing evaluation and treatment

of a defendant ordered under division (B)(1)(a) of this section believes that there

is not a substantial probability that the defendant will become capable of understanding

the nature and objective of the proceedings against the defendant or of assisting

in the defendant's defense even if the defendant is provided with a course of treatment. (G) A report under division (F) of this section shall contain the examiner's findings,

the facts in reasonable detail on which the findings are based, and the examiner's

opinion as to the defendant's capability of understanding the nature and objective

of the proceedings against the defendant and of assisting in the defendant's defense.  If, in the examiner's opinion, the defendant remains incapable of understanding

the nature and objective of the proceedings against the defendant and of assisting

in the defendant's defense and there is a substantial probability that the defendant

will become capable of understanding the nature and objective of the proceedings against

the defendant and of assisting in the defendant's defense if the defendant is provided

with a course of treatment, if in the examiner's opinion the defendant continues to

have a mental illness or an intellectual disability, and if the maximum time for treatment

as specified in division (C) of this section has not expired, the report also shall

contain the examiner's recommendation as to the least restrictive placement or commitment

alternative that is consistent with the defendant's treatment needs for restoration

to competency and with the safety of the community.  The court shall provide copies of the report to the prosecutor and defense counsel. (H) If a defendant is committed pursuant to division (B)(1) of this section, within ten

days after the treating physician of the defendant or the examiner of the defendant

who is employed or retained by the treating facility advises that there is not a substantial

probability that the defendant will become capable of understanding the nature and

objective of the proceedings against the defendant or of assisting in the defendant's

defense even if the defendant is provided with a course of treatment, within ten days

after the expiration of the maximum time for treatment as specified in division (C)

of this section, within ten days after the expiration of the maximum time for continuing

evaluation and treatment as specified in division (B)(1)(a) of this section, within

thirty days after a defendant's request for a hearing that is made after six months

of treatment, or within thirty days after being advised by the treating physician

or examiner that the defendant is competent to stand trial, whichever is the earliest,

the court shall conduct another hearing to determine if the defendant is competent

to stand trial and shall do whichever of the following is applicable: (1) If the court finds that the defendant is competent to stand trial, the defendant

shall be proceeded against as provided by law. (2) If the court finds that the defendant is incompetent to stand trial, but that there

is a substantial probability that the defendant will become competent to stand trial

if the defendant is provided with a course of treatment, and the maximum time for

treatment as specified in division (C) of this section has not expired, the court,

after consideration of the examiner's recommendation, shall order that treatment be

continued, may change the facility or location at which the treatment is to be continued,

and shall specify whether the treatment is to be continued at the same or a different

facility or location. (3) If the court finds that the defendant is incompetent to stand trial, if the defendant

is charged with an offense listed in division (C)(1) or (2) of this section, and if

the court finds that there is not a substantial probability that the defendant will

become competent to stand trial even if the defendant is provided with a course of

treatment, or if the maximum time for treatment relative to that offense as specified

in division (C) of this section has expired, further proceedings shall be as provided

in sections 2945.39 , 2945.401 , and 2945.402 of the Revised Code . (4) If the court finds that the defendant is incompetent to stand trial, if the most

serious offense with which the defendant is charged is a misdemeanor or a felony other

than a felony listed in division (C)(1) or (2) of this section, and if the court finds

that there is not a substantial probability that the defendant will become competent

to stand trial even if the defendant is provided with a course of treatment, or if

the maximum time for treatment relative to that offense as specified in division (C)

of this section has expired, the court shall dismiss the indictment, information,

or complaint against the defendant.  A dismissal under this division is not a bar to further prosecution based on the

same conduct.  The court shall discharge the defendant unless the court or prosecutor files an

affidavit in probate court for civil commitment pursuant to Chapter 5122. or 5123.

of the Revised Code.  If an affidavit for civil commitment is filed, the court may detain the defendant

for ten days pending civil commitment and shall send to the probate court copies of

all written reports of the defendant's mental condition prepared pursuant to section 2945.371 of the Revised Code . All of the following provisions apply to persons charged with a misdemeanor or a felony

other than a felony listed in division (C)(1) or (2) of this section who are committed

by the probate court subsequent to the court's or prosecutor's filing of an affidavit

for civil commitment under authority of this division: (a) The chief clinical officer of the entity, hospital, or facility, the managing officer

or director of the institution, facility, or jail, or the person to which the defendant

is committed or admitted shall do all of the following: (i) Notify the prosecutor, in writing, of the discharge of the defendant, send the notice

at least ten days prior to the discharge unless the discharge is by the probate court,

and state in the notice the date on which the defendant will be discharged; (ii) Notify the prosecutor, in writing, when the defendant is absent without leave or

is granted unsupervised, off-grounds movement, and send this notice promptly after

the discovery of the absence without leave or prior to the granting of the unsupervised,

off-grounds movement, whichever is applicable; (iii) Notify the prosecutor, in writing, of the change of the defendant's commitment or

admission to voluntary status, send the notice promptly upon learning of the change

to voluntary status, and state in the notice the date on which the defendant was committed

or admitted on a voluntary status. (b) Upon receiving notice that the defendant will be granted unsupervised, off-grounds

movement, the prosecutor either shall re-indict the defendant or promptly notify the

court that the prosecutor does not intend to prosecute the charges against the defendant. (I) If a defendant is convicted of a crime and sentenced to a jail, the defendant's sentence

shall be reduced by the total number of days the defendant is confined for evaluation

to determine the defendant's competence to stand trial or treatment under this section

and sections 2945.37 and 2945.371 of the Revised Code or by the total number of days the defendant is confined for evaluation to determine

the defendant's mental condition at the time of the offense charged. (J) If a defendant is found incompetent to stand trial and the treating facility or responsible

clinician determines that the defendant lacks capacity to consent to treatment or

refuses treatment, including medication, and no petition is filed under division (B)(1)(c)

of this section, the time period for treatment specified in division (C) of this section

shall be tolled during any period of time the defendant lacks capacity to consent

to treatment or refuses treatment, including medication. (K) If a defendant is found incompetent to stand trial and the treating facility or responsible

clinician determines that the defendant lacks capacity to consent to treatment or

refuses treatment, including medication, and a petition is filed under division (B)(1)(c)

of this section, the time period for treatment specified in division (C) of this section

shall be tolled during any period of time the petition is pending. (L) For purposes of this section, the chief clinical officer of the hospital, facility,

or agency where the defendant is placed, or the managing officer or director of the

institution, facility, or jail, or the person to which the defendant is committed

for treatment, shall document the determination that the defendant lacks capacity

to consent to treatment or refuses treatment, including medication, and shall notify

the court within fourteen days of that determination. (M) If a defendant who has been found incompetent to stand trial is subsequently found

competent during the course of treatment or continuing evaluation and treatment and

is later again found incompetent to stand trial, the time period for treatment specified

in division (C) of this section resets, and the court shall treat the new period of

incompetency as a distinct restoration period subject to the limitations in division

(C) of this section. (N) The amendments to this section by this act apply retroactively to all defendants

who were found incompetent to stand trial prior to the effective date of this amendment

and whose restoration to competency is ongoing or whose case remains pending.