Stricken language would be deleted from and underlined language would be added to present law.
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State of Arkansas 1
95th General Assembly A Bill 2
Regular Session, 2025 SENATE BILL 313 3
4
By: Senators Irvin, B. Davis, J. English 5
By: Representatives K. Moore, Vaught, Barker, Bentley, A. Brown, K. Brown, R. Burkes, Cavenaugh, 6
Crawford, Dalby, Duke, Henley, Lundstrum, J. Mayberry, McAlindon 7
8
For An Act To Be Entitled 9
AN ACT CONCERNING FORENSIC MENTAL HEALTH EVALUATIONS 10
AND TREATMENT; TO PROMOTE AND IMPROVE EFFICIENCIES 11
AND QUALITY IN THE DEPARTMENT OF HUMAN SERVICES; AND 12
FOR OTHER PURPOSES. 13
14
15
Subtitle 16
CONCERNING FORENSIC MENTAL HEALTH 17
EVALUATIONS AND TREATMENT; AND TO 18
PROMOTE AND IMPROVE EFFICIENCIES AND 19
QUALITY IN THE DEPARTMENT OF HUMAN 20
SERVICES. 21
22
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 23
24
SECTION 1. Arkansas Code § 5 -2-301(3), concerning the definition of 25
"designated receiving facility or program" regarding mental disease or 26
defect, is amended to read as follows: 27
(3) “Designated receiving facility or program” means an 28
inpatient or outpatient treatment facility or program that is designated 29
within each geographic area of the state by the Director of the Division of 30
Aging, Adult, and Behavioral Health Services of the Department of Human 31
Services to accept the responsibility for the care, custody, and treatment of 32
a person involuntarily admitted committed to the state mental health system 33
for mental health treatment ; 34
35
SECTION 2. Arkansas Code § 5 -2-301(5), concerning the definition of 36 SB313
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"frivolous" regarding mental disease or defect, is amended to read as 1
follows: 2
(5) “Frivolous” means clearly lacking any a reasonable basis in 3
fact or law; 4
5
SECTION 3. Arkansas Code § 5 -2-301, concerning the definitions used 6
regarding mental disease or defect, is amended to add an additional 7
subdivision to read as follows: 8
(14)(A) "Jail-based restoration services" means clinical and 9
educational services provided in a county jail to a defendant to assist in 10
the restoration of the defendant's fitness to proceed. 11
(B) "Jail-based restoration services" includes without 12
limitation mental health treatment, medical treatment, and substance abuse 13
treatment. 14
15
SECTION 4. Arkansas Code § 5 -2-304 is amended to read as follows: 16
5-2-304. Notice requirement. 17
(a) When a defendant intends to raise lack of criminal responsibility 18
as a an affirmative defense in a prosecution or put in issue his or her 19
fitness to proceed, the defendant shall notify the prosecutor and the court 20
at the earliest practicable time. 21
(b)(1) Failure to notify the prosecutor within a reasonable time 22
before the trial date entitles the prosecutor to a continuance that for 23
limitation purposes is deemed an excluded period granted on application of 24
the defendant. 25
(2) Alternatively, in lieu of suspending any further proceedings 26
under § 5-2-328, the court may order the immediate examination of the 27
defendant at a designated receiving facility or program by an expert. 28
(c) When the court or a party in a criminal proceeding has reason to 29
believe that a defendant is not fit to proceed, the court or a party shall 30
raise the question of the defendant’s fitness in the following manner: 31
(1) On its own motion, the court shall suspend the proceedings 32
and order an examination of the defendant pursuant to this subchapter; or 33
(2) By written motion of the prosecutor or defense council, 34
stating that the request is made in good faith and not for the purposes of 35
delay and containing the facts and observations in support of the request. 36 SB313
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(d) When the defendant intends to raise the lack of criminal 1
responsibility as an affirmative defense, the defendant shall file a notice 2
of intent and the circuit court shall suspend all further proceedings. 3
(e) Upon filing of an order for an examination of criminal 4
responsibility or fitness to proceed with a circuit clerk: 5
(1) The moving party shall immediately submit a copy of the 6
order to the Department of Human Services; 7
(2) The prosecutor shall submit a copy of the defendant’s case 8
file to the department; 9
(3) The attorney for the defendant shall submit to the 10
department either: 11
(A) A release of protected health information, signed by 12
the defendant, with a list of all known previous healthcare providers; or 13
(B) If the defendant cannot provide consent, a court order 14
for the production of records; and 15
(4) The attorney for the defendant shall make all reasonable 16
efforts to provide any medical, psychiatric, or treatment records that may be 17
relevant to the examination to the department. 18
19
SECTION 5. Arkansas Code § 5 -2-310 is amended to read as follows: 20
5-2-310. Lack of fitness to proceed — Procedures subsequent to finding. 21
(a)(1)(A) If the court determines that a defendant lacks fitness to 22
proceed, the proceeding against him or her shall be suspended and the court 23
may commit the defendant to the custody of the Department of Human Services 24
for detention, care, and treatment until restoration of fitness to proceed. 25
(B) If the court determines that a defendant lacks fitness 26
to proceed because of a mental disease or defect that precludes the 27
possibility of restoration, the court shall direct the defendant to available 28
services and supports as recommended by the department. 29
(C) However, if If the court is satisfied that the 30
defendant may be released without danger to himself or herself or to the 31
person or property of another, the court may order the defendant's release 32
and the release shall continue at the discretion of the court on conditions 33
the court determines necessary. 34
(D) If the court finds that the defendant lacks fitness to 35
proceed or that the defendant is fit to proceed but that the defendant’s 36 SB313
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fitness to proceed depends on the continuation of appropriate treatment for a 1
mental disease or defect, the court shall consider issues relating to 2
treatment necessary to restore or maintain the defendant’s fitness to 3
proceed. 4
(E) If the court finds that the defendant may be treated 5
in the community, the court may make receipt of reasonable medical treatment 6
a condition of his or her release. 7
(F) If the defendant is incarcerated, the court may order 8
administration of medication to maintain the fitness of the defendant. 9
(G) Days spent in the physical custody of the department 10
under this subsection (a) are considered days spent in custody for 11
determining credit for time served. 12
(2) A copy of the report filed under § 5 -2-327 shall be attached 13
to the order of commitment or order of conditional release. 14
(3)(A) At any time after the issue of a defendant's fitness to 15
proceed has been raised, the court may, on a motion of the state, dismiss all 16
charges pending against the defendant. 17
(B) If the court dismisses the charges pending against a 18
defendant, the proceedings shall discontinue, and the defendant shall be 19
discharged. 20
(b)(1) Within a reasonable period of time , but in any case within ten 21
(10) not to exceed six (6) months of a commitment pursuant to subsection (a) 22
of this section, the department shall file with the committing court a 23
written report indicating whether the defendant is fit to proceed, or if not, 24
whether: 25
(A) The defendant's mental disease or defect is of a 26
nature precluding restoration of fitness to proceed or it does not appear 27
that the defendant will become fit to proceed within the reasonably 28
foreseeable future; and 29
(B) The defendant presents a danger to himself or herself 30
or to the person or property of another. 31
(2)(A) The court shall make a determination within one (1) year 32
eight (8) months of a commitment pursuant to subsection (a) of this section. 33
(B) Pursuant to the report of the department or as a 34
result of a hearing on the report, if the court determines that the defendant 35
is fit to proceed, prosecution in ordinary course may commence. 36 SB313
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(C) If the defendant lacks fitness to proceed but does not 1
present a danger to himself or herself or to the person or property of 2
another, the court may release the defendant on conditions the court 3
determines to be proper. 4
(D) If the defendant lacks fitness to proceed and presents 5
a danger to himself or herself or the person or property of another, the 6
court shall order the department to petition for an involuntary admission 7
commitment. 8
(E) Upon filing of an order finding that the defendant 9
lacks fitness to proceed issued under subdivision (b)(2)(A) of this section 10
with a circuit clerk or a probate clerk, the circuit clerk or the probate 11
clerk shall submit a copy of the order to the Arkansas Crime Information 12
Center. 13
(c)(1) On the court's own motion or upon application of the 14
department, the prosecuting attorney, or the defendant, and after a hearing 15
if a hearing is requested, if the court determines that the defendant has 16
regained fitness to proceed, the criminal proceeding shall be resumed. 17
(2) If the defendant has been receiving and responding well to 18
treatment, including medication, the court may make appropriate orders for 19
the continued treatment or administration of medication, or both to maintain 20
the fitness of the defendant throughout the remainder of the proceedings. 21
(3) However, if the court is of the view that so much time has 22
elapsed since the alleged commission of the offense in question that it would 23
be unjust to resume the criminal proceeding, the court may dismiss the charge 24
regardless of whether the defendant has regained fitness to proceed . 25
(4)(A) On either the motion of the court or the state, a hearing 26
shall be held to determine whether the charges against a defendant who lacks 27
fitness to proceed due to mental disease or defect may be dismissed if the 28
defendant remains without fitness to proceed for five (5) continuous years 29
from the date of determination of lack of fitness. 30
(B) If the charges are dismissed, the dismissal shall be 31
without prejudice to the state. 32
(C) If the court moves for a hearing, the state shall have 33
notice of at least sixty (60) days before the hearing date unless the state 34
consents to another date. 35
(d)(1) Persons authorized by this section to administer treatment or 36 SB313
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medication shall not be criminally liable for administering treatment or 1
medication pursuant to this subchapter if done in good faith. 2
(2) Persons authorized to administer treatment or medication 3
shall not be civilly liable for such activities when the persons acted in a 4
reasonable manner and according to generally accepted medical and other 5
professional practices. 6
(e)(1) A law enforcement officer or a corrections officer may employ 7
reasonable force in cases where an individual refuses administration of 8
court-ordered treatment or medication. 9
(2) A law enforcement officer or a corrections officer shall not 10
be criminally or civilly liable for the use of reasonable force under 11
subdivision (e)(1) of this section. 12
13
SECTION 6. Arkansas Code Title 5, Chapter 2, Subchapter 3, is amended 14
to add an additional section to read as follows: 15
5-2-318. Restoration in county jails. 16
(a) Jail-based restoration services shall be permitted through 17
telehealth. 18
(b) Jail-based restoration services that involve procedures other than 19
or in addition to telehealth services may be provided upon the consent of the 20
county sheriff or the keeper, superintendent, or administrator of the county 21
jail. 22
23
SECTION 7. Arkansas Code § 5 -2-327 is amended to read as follows: 24
5-2-327. Examination of defendant — Fitness to proceed. 25
(a)(1)(A) Any party or the court may raise the issue of the 26
defendant's fitness to proceed by written motion. 27
(B) A written motion by the prosecuting attorney or 28
defense counsel shall: 29
(i) State that the motion for examination of the 30
defendant is made in good faith and not for the purpose of delay; and 31
(ii) Include facts and observations to support the 32
motion for examination of the defendant. 33
(2) The court shall order an examination under this section if 34
it finds there is a reasonable suspicion that a defendant is not fit to 35
proceed. 36 SB313
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(3) The court may dismiss a motion for examination under this 1
section if the court determines that the motion: 2
(A) Is frivolous; or 3
(B) Has stated no facts to support the request for 4
examination. 5
(3)(4)(A) Subject to §§ 5 -2-304 and 5-2-311, the court shall 6
immediately suspend further proceedings in a prosecution if it has ordered an 7
examination under this section. 8
(B)(i) If a jury has been impaneled and the court suspends 9
proceedings under subdivision (a)(3)(A) (a)(4)(A) of this section, the court 10
may retain the jury or declare a mistrial and discharge the jury. 11
(ii) A discharge of the jury is not a bar to further 12
prosecution. 13
(4)(5)(A) If a court suspends further proceedings in the 14
prosecution under subdivision (a)(3)(A) (a)(4)(A) of this section, the court 15
shall enter an order : 16
(A) Appointing one (1) or more experts who do not practice 17
in the Arkansas State Hospital to examine the defendant and report on the 18
defendant's mental condition; or 19
(B)(i) Directing directing the Director of the Division of 20
Aging, Adult, and Behavioral Health Services of the Department of Human 21
Services to provide an expert who will examine and report upon the 22
defendant's mental condition. 23
(ii)(B) The director or his or her designee shall 24
determine the location of the examination required under subdivision 25
(a)(4)(B)(i) (a)(5)(A) of this section. 26
(b) An examination ordered under this section shall be for a period 27
not exceeding sixty (60) days unless the director or his or her designee 28
determines a longer period of examination is necessary for the purpose of the 29
examination. 30
(c) The department shall provide for or arrange the fitness to proceed 31
examination of the defendant at a jail, prison, community setting, or 32
psychiatric hospital. 33
(d)(1) A uniform order to be used by a court ordering an examination 34
of a defendant's fitness to proceed under this section shall be developed by 35
the Administrative Office of the Courts in conjunction with the following 36 SB313
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organizations: 1
(A) The Arkansas Prosecuting Attorneys Association; 2
(B) The Department of Human Services; and 3
(C) The Arkansas Public Defender Commission. 4
(2) The uniform order developed under this subsection shall 5
contain the following information: 6
(A) The defendant's name, age, gender, and race; 7
(B) The criminal charges pending against the defendant; 8
(C) The defendant's attorney's name and address; 9
(D) The defendant's custody status; 10
(E) The case number for which the examination was ordered; 11
(F) A unique identifying number on the incident reporting 12
form as required by the Arkansas Crime Information Center; and 13
(G) The name of the requesting attorney, if applicable ; 14
and 15
(H) An authorization to release and receive protected 16
health information. 17
(3) An examination under this section shall not be conducted 18
without using the uniform order required under this subsection. 19
(4) The uniform order shall require the prosecuting attorney to 20
provide to the examiner any information relevant to the examination, 21
including without limitation: 22
(A) The name and address of any attorney involved in the 23
matter; and 24
(B) Information about the alleged offense. 25
(5) The court may shall require the attorney for the defendant 26
to make all reasonable efforts to provide to the examiner any available 27
information relevant to the examination, including without limitation: 28
(A) Psychiatric records; 29
(B) Medical records; or 30
(C) Records pertaining to treatment of the defendant for 31
substance or alcohol abuse. 32
(d)(e)(1) An examination report ordered under this section shall be 33
filed with the clerk of the court ordering the examination and is a public 34
record. 35
(2) The court clerk shall provide copies of the examination 36 SB313
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report to the defendant's attorney and the prosecuting attorney. 1
(e)(f)(1) An examination report prepared by an examiner ordered under 2
this section shall: 3
(A) Contain an opinion as to whether or not the defendant 4
is fit to proceed and the basis for the opinion; 5
(B) Contain an opinion as to whether the defendant has a 6
mental disease or defect; 7
(C) Contain a substantiated diagnosis in the terminology 8
of the American Psychiatric Association's most current edition of the 9
Diagnostic and Statistical Manual of Mental Disorders; 10
(D) Document that the examiner explained to the defendant: 11
(i) The purpose of the examination; 12
(ii) The persons to whom the examination report is 13
provided; and 14
(iii) The limits on rules of confidentiality 15
applying to the relationship between the examiner and the defendant; and 16
(E) Describe, in specific terms: 17
(i) The procedures, techniques, and tests used in 18
the examination; 19
(ii) The purpose of each procedure, technique, or 20
test; and 21
(iii) The conclusions reached ; and 22
(F) An opinion as to whether the defendant: 23
(i) Presents a substantial danger to himself or 24
herself, others, or property; and 25
(ii) Presents a substantial risk to public safety 26
without a prescribed regimen of medical, psychiatric, or psychological care 27
or treatment. 28
(2) An examiner's opinion on the defendant's fitness to proceed 29
or lack of fitness to proceed may not be based solely on the defendant's 30
refusal to communicate during the examination. 31
(3)(A) During an examination to determine a defendant's fitness 32
to proceed and in any examination report based on that examination, an 33
examiner shall consider: 34
(i) The capacity of the defendant during criminal 35
proceedings to: 36 SB313
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(a) Rationally understand the charges against 1
him or her and the potential consequences of the pending criminal 2
proceedings; 3
(b) Disclose to the defendant's attorney 4
pertinent facts, events, and states of mind; 5
(c) Engage in a reasoned choice of legal 6
strategies and options; 7
(d) Understand the adversarial nature of 8
criminal proceedings; 9
(e) Exhibit appropriate courtroom behavior; 10
and 11
(f) Testify; 12
(ii) As supported by current indications and the 13
defendant's personal history, whether the defendant is a person with: 14
(a) A mental disease or defect; or 15
(b) An intellectual disability; and 16
(iii) The degree of impairment resulting from the 17
mental disease or defect or intellectual disability, if existent, and the 18
specific impact on the defendant's capacity to engage with the defendant's 19
attorney in an effective manner. 20
(B) The information or lack of information contained in 21
the examiner's report is not intended to limit the introduction of evidence 22
regarding the defendant's fitness to proceed. 23
(4) If the examiner concludes that the defendant lacks fitness 24
to proceed, the report shall contain: 25
(A) An opinion of the condition causing the lack of 26
fitness to proceed; 27
(B) An opinion of the treatment necessary for the 28
defendant to obtain fitness to proceed; and 29
(C) An opinion on the likelihood of the defendant 30
attaining fitness to proceed under treatment. 31
(f)(g) This subchapter does not preclude the defendant from having an 32
examination conducted by an expert of the defendant's own choosing to 33
determine the defendant's fitness to proceed, and the court shall provide the 34
defendant's expert with a reasonable opportunity to examine the defendant 35
upon a timely request. 36 SB313
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(g)(h) When the defendant has previously been found fit to proceed, 1
the court may order a second or subsequent examination to determine a 2
defendant's fitness to proceed only if the court: 3
(1) Finds reasonable cause to believe that new or previously 4
undiscovered evidence calls into question the factual, legal, or scientific 5
basis of the opinion upon which the previous finding of fitness relied; 6
(2) Finds reasonable cause to believe that the defendant's 7
mental condition has changed; or 8
(3) Sets forth in the order a factual or legal basis upon which 9
to order another examination. 10
(h)(i) Upon completion of examination under this section, the court 11
may enter an order providing for further examination of the defendant and may 12
order the defendant into the custody of the director for further examination 13
and observation if the court determines that commitment and further 14
examination are is warranted. 15
16
SECTION 8. Arkansas Code § 5 -2-328(a), concerning the procedure when a 17
defendant intends to raise lack of criminal responsibility as an affirmative 18
defense, is amended to add an additional subdivision to read as follows: 19
(4) An examination under this section shall be conducted only 20
after the circuit court has found the defendant fit to proceed. 21
22
SECTION 9. Arkansas Code § 5 -2-328(b)(2), concerning the uniform order 23
for examination of a defendant's lack of criminal responsibility, is amended 24
to read as follows: 25
(2) The uniform order developed under this subsection shall 26
contain, without limitation, the following information: 27
(A) The defendant's name, age, gender, and race; 28
(B) The criminal charges pending against the defendant; 29
(C) The defendant's attorney's name and address; 30
(D) The defendant's custody status; 31
(E) The case number for which the examination was ordered; 32
(F) A unique identifying number on the incident reporting 33
form as required by the Arkansas Crime Information Center; and 34
(G) The name of the requesting attorney, if applicable ; 35
and 36 SB313
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(H) An authorization to release and receive protected 1
health information. 2
3
SECTION 10. Arkansas Code § 5 -2-328(b)(4), concerning an order for 4
examination of a defendant's lack of criminal responsibility, is amended to 5
read as follows: 6
(4) The circuit court may shall require the attorney for the 7
defendant to provide to the examiner a signed release of information and any 8
available information relevant to the examination, including without 9
limitation: 10
(A) Psychiatric records; 11
(B) Medical records; or 12
(C) Records pertaining to treatment of the defendant for 13
substance or alcohol abuse. 14
15
SECTION 11. Arkansas Code § 5 -2-328(c), concerning the report of an 16
examination of a defendant's lack of criminal responsibility, is amended to 17
read as follows: 18
(c) An examination report prepared by an examiner ordered under this 19
section shall contain: 20
(1) A description of the nature of the examination; 21
(2) An opinion as to whether as the result of a mental disease 22
or defect the defendant at the time of the alleged offense lacked the 23
capacity to appreciate the criminality of his or her conduct or to conform 24
his or her conduct to the requirements of the law, an explanation of the 25
examiner's opinion, and the basis of that opinion; 26
(3) When directed by the circuit court, an opinion as to whether 27
at the time of the alleged offense the defendant lacked the capacity to form 28
a culpable mental state that is required to establish an element of the 29
alleged offense, an explanation of the examiner's opinion, and the basis of 30
that opinion; and 31
(4) An opinion as to whether the defendant presents a 32
substantial danger to himself, herself, or others or presents a substantial 33
risk to public safety or to property without a prescribed regimen of medical, 34
psychiatric, or psychological care or treatment; and 35
(5) If an examination cannot be conducted because of the 36 SB313
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unwillingness of the defendant to participate in the examination, an opinion 1
as to whether the unwillingness of the defendant is the result of mental 2
disease or defect. 3
4
SECTION 12. Arkansas Code § 5 -2-331 is amended to read as follows: 5
5-2-331. Cost of mental health services, examination, and treatment of 6
defendant. 7
(a) A person or entity that provides treatment or other mental health 8
services under this subchapter may impose a charge for the cost of the 9
treatment or other mental health services rendered. 10
(b) A charge for the cost of treatment or other mental health services 11
under this section may not exceed the actual cost of the treatment or other 12
mental health services provided. 13
(c)(1) If the Department of Human Services cannot accept a defendant 14
that has been ordered by a court to the custody of the department, the 15
department shall fully reimburse the county for the cost of the medication 16
necessary to maintain the defendant's fitness to proceed. 17
(2) Responsibility for reimbursement under subdivision (c)(1) of 18
this section shall begin on the date that the defendant is ordered to the 19
custody of the department. 20
(d)(1) No more than thirty (30) days after the end of each quarter, 21
the county sheriff or his or her designee shall prepare a quarterly invoice 22
to be sent to the department for reimbursement that lists: 23
(A) Each defendant ordered to the custody of the 24
department that has been detained in the county jail during the previous 25
month; 26
(B) The number of days each defendant ordered to the 27
custody of the department was in the county jail in awaiting -bed-space 28
status; and 29
(C) An itemized list of medications prescribed to each 30
defendant ordered to the custody of the department and the cost of the 31
medications. 32
(2) The county sheriff or his or her designee shall provide 33
supporting documentation to certify the costs to be reimbursed by the 34
department. 35
(3) Quarters shall end September 30, December 31, March 31, and 36 SB313
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June 30 of each year. 1
(4) The certified invoices shall then be returned to the county 2
sheriff or his or her designee with the department keeping a duplicate copy. 3
(5) Payment shall be made within ten (10) business days upon 4
return of the certified invoices returned to each county. 5
(e)(1) The county sheriff shall maintain a quarterly invoice for three 6
(3) calendar years. 7
(2) The quarterly invoice maintained by the county sheriff is 8
subject to review by Arkansas Legislative Audit. 9
(3) A quarterly invoice under subsection (d) of this section 10
shall be sent electronically. 11
(4) The department shall not issue any reimbursements under this 12
subsection until the department receives a certified quarterly invoice with 13
supporting documentation requesting reimbursement. 14
(f)(1) The Division of Aging, Adult, and Behavioral Health Services of 15
the Department of Human Services shall promulgate rules establishing 16
reasonable charges for the cost of treatment or other mental health services 17
under this section. 18
(2) Rules establishing reasonable charges for the cost of 19
treatment or other mental health services under this section shall provide 20
for waiving or postponing the collection of the charges based on: 21
(A) Clinical considerations; 22
(B) The defendant's inability to pay; or 23
(C) A court determination that the defendant is wholly or 24
partly indigent and qualifies for the appointment of an attorney under § 16 -25
87-213. 26
27
SECTION 13. Arkansas Code § 5 -4-102(c), concerning presentence 28
investigations is amended to read as follows: 29
(c)(1) Before imposing sentence, the court may order the defendant to 30
submit to psychiatric examination and evaluation for a period not to exceed 31
thirty (30) days. 32
(2) The defendant may be remanded for psychiatric examination 33
and evaluation to the Arkansas State Hospital, or the court may appoint a 34
qualified psychiatrist to make the psychiatric examination and evaluation 35
court may direct the Department of Human Services to provide a qualified 36 SB313
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psychiatrist or qualified psychologist to make the examination and 1
evaluation. 2
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