Ohio § 2945.39

§ 2945.39.

(A) If a defendant who is charged with an offense described in division (C)(1) or (2)

of section 2945.38 of the Revised Code is found incompetent to stand trial, after

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

section or after 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, one of the following applies: (1) The court or the prosecutor may file an affidavit in probate court for civil commitment

of the defendant in the manner provided in Chapter 5122. or 5123. of the Revised Code.  If the court or prosecutor files an affidavit for civil commitment, the court may

detain the defendant for ten days pending civil commitment.  If the probate court commits the defendant subsequent to the court's or prosecutor's

filing of an affidavit for civil commitment, the chief clinical officer of the entity,

hospital, or facility, the managing officer of the institution, the director of the

program, or the person to which the defendant is committed or admitted shall send

to the prosecutor the notices described in divisions (H)(4)(a)(i) to (iii) of section

2945.38 of the Revised Code within the periods of time and under the circumstances

specified in those divisions. (2) On the motion of the prosecutor or on its own motion, the court may retain jurisdiction

over the defendant if, at a hearing, the court finds both of the following by clear

and convincing evidence: (a) The defendant committed the offense with which the defendant is charged. (b) 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. (B) In making its determination under division (A)(2) of this section as to whether to

retain jurisdiction over the defendant, the court may consider all relevant evidence,

including, but not limited to, any relevant psychiatric, psychological, or medical

testimony or reports, the acts constituting the offense charged, and any history of

the defendant that is relevant to the defendant's ability to conform to the law. (C) If the court conducts a hearing as described in division (A)(2) of this section and

if the court does not make both findings described in divisions (A)(2)(a) and (b)

of this section by clear and convincing evidence, the court shall dismiss the indictment,

information, or complaint against the defendant.  Upon the dismissal, the court shall discharge the defendant unless the court or

prosecutor files an affidavit in probate court for civil commitment of the defendant

pursuant to Chapter 5122. or 5123. of the Revised Code.  If the court or prosecutor files an affidavit for civil commitment, the court may

order that the defendant be detained for up to ten days pending the civil commitment.  If the probate court commits the defendant subsequent to the court's or prosecutor's

filing of an affidavit for civil commitment, the chief clinical officer of the entity,

hospital, or facility, the managing officer of the institution, the director of the

program, or the person to which the defendant is committed or admitted shall send

to the prosecutor the notices described in divisions (H)(4)(a)(i) to (iii) of section

2945.38 of the Revised Code within the periods of time and under the circumstances

specified in those divisions.  A dismissal of charges under this division is not a bar to further criminal proceedings

based on the same conduct. (D)(1) If the court conducts a hearing as described in division (A)(2) of this section and

if the court makes the findings described in divisions (A)(2)(a) and (b) of this section

by clear and convincing evidence, the court shall commit the defendant, if determined

to require mental health treatment, either to the department of mental health and

addiction services for treatment at a hospital, facility, or agency as determined

clinically appropriate by the department of mental health and addiction services or

to another medical or psychiatric facility, as appropriate.  Prior to placing the defendant, the department of mental health and addiction services

shall obtain court approval for that placement.  If the court conducts such a hearing and if it makes those findings by clear and

convincing evidence, the court shall commit the defendant, if determined to require

treatment for an intellectual disability, to a facility operated by the department

of developmental disabilities, or another facility, as appropriate.  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, and the

type of crime involved and shall order the least restrictive alternative available

that is consistent with public safety and the welfare of the defendant.  In weighing these factors, the court shall give preference to protecting public

safety. (2) If a court makes a commitment of a defendant under division (D)(1) of this section,

the prosecutor shall send to the hospital, facility, or agency where the defendant

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

place of commitment all reports of the defendant's current mental condition and, except

as otherwise provided in this division, any other relevant information, including,

but not limited to, a transcript of the hearing held pursuant to division (A)(2) of

this section, copies of relevant police reports, and copies of any prior arrest and

conviction records that pertain to the defendant and that the prosecutor possesses.  The prosecutor shall send the reports of the defendant's current mental condition

in every case of commitment, and, unless the prosecutor determines that the release

of any of the other relevant information to unauthorized persons would interfere with

the effective prosecution of any person or would create a substantial risk of harm

to any person, the prosecutor also shall send the other relevant information.  Upon admission of a defendant committed under division (D)(1) of this section, the

place of commitment shall send to the board of alcohol, drug addiction, and mental

health services or the community mental health board serving the county in which the

charges against the defendant were filed a copy of all reports of the defendant's

current mental condition and a copy of the other relevant information provided by

the prosecutor under this division, including, if provided, a transcript of the hearing

held pursuant to division (A)(2) of this section, the relevant police reports, and

the prior arrest and conviction records that pertain to the defendant and that the

prosecutor possesses. (3) If a court makes a commitment under division (D)(1) of this section, all further

proceedings shall be in accordance with sections 2945.401 and 2945.402 of the Revised Code .