| 10 | 6 | | Annotated, relating to insanity and mental incapacity, so as to require a hearing before a2 |
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| 11 | 7 | | court orders an evaluation of the mental competency of an accused person to stand trial; to3 |
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| 12 | 8 | | provide for the release of reports of such evaluations; to establish different procedures in4 |
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| 13 | 9 | | cases where the subject has been accused only of one or more nonviolent misdemeanor5 |
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| 14 | 10 | | offenses, including automatic dismissal in some cases, subject to exceptions; to provide for6 |
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| 15 | 11 | | such different procedures and such exceptions; to amend Article 2 of Chapter 1 of Title 377 |
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| 16 | 12 | | of the Official Code of Georgia Annotated, relating to powers and duties of the Department8 |
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| 17 | 13 | | of Behavioral Health and Developmental Disabilities, so as to provide for the receipt of9 |
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| 18 | 14 | | conviction data; to provide for related matters; to provide for an effective date and10 |
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| 19 | 15 | | applicability; to repeal conflicting laws; and for other purposes.11 |
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| 20 | 16 | | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:12 |
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| 21 | 17 | | SECTION 1.13 |
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| 22 | 18 | | Part 2 of Article 6 of Chapter 7 of Title 17 of the Official Code of Georgia Annotated,14 |
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| 23 | 19 | | relating to insanity and mental incapacity, is amended by revising Code Section 17-7-129,15 |
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| 34 | 28 | | such information is made known to the court by the accused or the attorney for the accused,22 |
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| 35 | 29 | | a hearing as provided for in paragraph (1) of subsection (b) of Code Section 17-7-130 shall23 |
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| 36 | 30 | | be required. The court may order the Department of Behavioral Health and Developmental24 |
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| 37 | 31 | | Disabilities to conduct an evaluation of the accused's competency. If the court determines25 |
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| 38 | 32 | | that it is necessary to have a trial on the issue of competency, the court shall follow the26 |
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| 39 | 33 | | procedures set forth in Code Section 17-7-130. The court's order shall set forth those facts27 |
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| 40 | 34 | | which give rise to its bona fide doubt as to the accused's mental competency to stand trial. 28 |
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| 41 | 35 | | The evaluation of the Department of Behavioral Health and Developmental Disabilities29 |
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| 42 | 36 | | shall be submitted to the court, and the court shall submit such evaluation to the attorney30 |
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| 43 | 37 | | for the accused or, if pro se, to the accused, but otherwise, the report shall remain under31 |
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| 44 | 38 | | seal.32 |
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| 45 | 39 | | (b) If the court orders a competency evaluation and the accused serves notice of a special33 |
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| 46 | 40 | | plea of mental incompetency to stand trial or raises the issue of insanity and the court34 |
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| 47 | 41 | | orders a competency evaluation, the court shall release the competency evaluation to the35 |
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| 48 | 42 | | attorney for the accused or, if pro se, to the accused, and to the prosecuting attorney. Such;36 |
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| 49 | 43 | | provided, however, that such evaluation shall not be released to any other person absent a37 |
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| 50 | 44 | | court order.38 |
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| 51 | 45 | | (c) If the court determines that it is necessary to have a trial on the issue of competency,39 |
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| 52 | 46 | | the court shall follow the procedures set forth in Code Section 17-7-130."40 |
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| 61 | 53 | | shall hold a hearing to determine if there is sufficient information to raise a bona fide45 |
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| 62 | 54 | | doubt regarding the accused's current mental competency to stand trial. The46 |
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| 63 | 55 | | prosecuting attorney may submit information regarding the accused's current mental47 |
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| 64 | 56 | | competency to stand trial. Any evidence presented by the accused, may, upon request48 |
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| 65 | 57 | | by the accused or the attorney for the accused, be ex parte and any evidence submitted49 |
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| 66 | 58 | | by either party shall be filed under seal. The court may, upon cause shown at such50 |
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| 67 | 59 | | hearing, order the department to conduct an evaluation by a physician or licensed51 |
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| 68 | 60 | | psychologist to determine the accused's mental competency to stand trial and, if such.52 |
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| 69 | 61 | | (B) If the physician or licensed psychologist provided for in subparagraph (A) of this53 |
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| 70 | 62 | | paragraph determines the accused to be mentally incompetent to stand trial, the54 |
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| 71 | 63 | | Department of Behavioral Health and Developmental Disabilities department, in its sole55 |
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| 72 | 64 | | discretion, shall determine an appropriate treatment with the capability to restore the56 |
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| 73 | 65 | | accused to competency, which may include inpatient treatment in a secure facility57 |
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| 74 | 66 | | designated by the department or a jail-based competency restoration program. If, and,58 |
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| 75 | 67 | | if the accused is a child, the department shall be authorized to place such child in a59 |
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| 76 | 68 | | secure facility designated by the department.60 |
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| 77 | 69 | | (C) The department's evaluation made pursuant to subparagraph (A) of this paragraph61 |
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| 78 | 70 | | shall be submitted to the court, and the court shall submit such evaluation to the62 |
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| 79 | 71 | | attorney for the accused or, if pro se, to the accused, but otherwise,; provided, however,63 |
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| 80 | 72 | | that the evaluation shall be under seal and shall not be released to any other person64 |
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| 81 | 73 | | absent a court order.65 |
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| 82 | 74 | | (D) As used in this paragraph, the term 'jail-based competency restoration' means66 |
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| 83 | 75 | | clinical services for competency restoration that are provided in jails to persons found67 |
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| 88 | 79 | | and the department to offer such clinical services in jails.69 |
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| 89 | 80 | | (2) If the accused files a special plea alleging that the accused is mentally incompetent70 |
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| 90 | 81 | | to stand trial, it shall be the duty of the court to have a bench trial, unless the state or the71 |
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| 91 | 82 | | accused demands a special jury trial, to determine the accused's competency to stand trial. 72 |
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| 92 | 83 | | Once a special plea has been filed, the court shall submit the department's evaluation to73 |
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| 93 | 84 | | the prosecuting attorney.74 |
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| 96 | 86 | | order a department physician or licensed psychologist to evaluate and diagnose the76 |
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| 97 | 87 | | accused as to whether there is a substantial probability that the accused will attain mental77 |
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| 98 | 88 | | competency to stand trial in the foreseeable future. The court shall retain jurisdiction78 |
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| 99 | 89 | | over the accused and shall transfer the accused to the physical custody of the department. 79 |
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| 100 | 90 | | At its discretion, the court may allow the evaluation to be performed on the accused as80 |
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| 101 | 91 | | an outpatient if the accused is charged with a nonviolent offense.81 |
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| 102 | 92 | | (2) The Such evaluation provided for in paragraph (1) of this subsection shall be82 |
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| 103 | 93 | | performed:83 |
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| 104 | 94 | | (A) Except as provided in subparagraph (B) of this paragraph, within 90 days after the84 |
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| 105 | 95 | | department has received actual custody of an accused or, in the case of an outpatient,85 |
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| 106 | 96 | | a court order requiring evaluation of an accused. If the accused is a child, the86 |
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| 107 | 97 | | department shall be authorized to place such child in a secure facility designated by the87 |
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| 108 | 98 | | department; or88 |
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| 109 | 99 | | (B) If the accused is charged only with one or more nonviolent misdemeanor offenses,89 |
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| 110 | 100 | | within 45 days after the department has received actual custody of an accused or, in the90 |
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| 111 | 101 | | case of an outpatient, a court order requiring evaluation of an accused; provided,91 |
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| 112 | 102 | | however, that the provisions of this subparagraph shall not apply to a misdemeanor92 |
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| 113 | 103 | | charge of driving under the influence of drugs or alcohol in violation of Code93 |
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| 114 | 104 | | Section 40-6-391 or a misdemeanor charge involving an act of domestic violence.94 |
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| 116 | 106 | | - 4 - 25 LC 49 2357S |
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| 117 | 107 | | (3) If the evaluation provided for in paragraph (1) of this subsection shows:95 |
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| 118 | 108 | | (1)(A) That the accused is mentally competent to stand trial, the department shall96 |
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| 119 | 109 | | immediately report that determination and the reasons therefor to the court, and the97 |
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| 120 | 110 | | court shall submit such determination to the attorney for the accused or, if pro se, to the98 |
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| 121 | 111 | | accused and to the prosecuting attorney. The accused shall be returned to the court as99 |
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| 122 | 112 | | provided for in subsection (d) of this Code section;100 |
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| 123 | 113 | | (2)(B) That the accused is mentally incompetent to stand trial and that there is not a101 |
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| 124 | 114 | | substantial probability that the accused will attain competency in the foreseeable future,102 |
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| 125 | 115 | | the court shall follow the procedures set forth in subsection (e) of this Code section for103 |
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| 126 | 116 | | civil commitment or release; or104 |
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| 127 | 117 | | (3)(C) That the accused is mentally incompetent to stand trial but there is a substantial105 |
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| 128 | 118 | | probability that the accused will attain competency in the foreseeable future:106 |
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| 129 | 119 | | (i) Except as provided in division (ii) of this subparagraph, by the end of the 90 day107 |
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| 130 | 120 | | period provided for in subparagraph (A) of paragraph (2) of this subsection, or at any108 |
|---|
| 131 | 121 | | prior time, the department shall report that finding and the reasons therefor to the109 |
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| 132 | 122 | | court and shall retain custody over the accused for the purpose of continued treatment110 |
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| 133 | 123 | | for an additional period not to exceed nine months; provided, however, that if the111 |
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| 134 | 124 | | accused is charged with a misdemeanor offense or a nonviolent offense, the court112 |
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| 135 | 125 | | shall retain jurisdiction over the accused but may, in its discretion, allow continued113 |
|---|
| 136 | 126 | | treatment to be done on an outpatient basis by the department. The and the114 |
|---|
| 137 | 127 | | department shall monitor the accused's outpatient treatment for the additional period115 |
|---|
| 138 | 128 | | not to exceed nine months; or116 |
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| 139 | 129 | | (ii) If the accused is charged only with one or more nonviolent misdemeanor117 |
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| 140 | 130 | | offenses, by the end of the 45 day period provided for in subparagraph (B) of118 |
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| 141 | 131 | | paragraph (2) of this subsection, or at any prior time, the department shall report that119 |
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| 142 | 132 | | finding and the reasons therefor to the court and shall retain custody over the accused120 |
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| 143 | 133 | | for the purpose of continued treatment for an additional period not to exceed 120121 |
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| 145 | 135 | | - 5 - 25 LC 49 2357S |
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| 146 | 136 | | days; provided, however, that the court shall retain jurisdiction over the accused but122 |
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| 147 | 137 | | may, in its discretion, allow continued treatment to be done on an outpatient basis by123 |
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| 148 | 138 | | the department and the department shall monitor the accused's outpatient treatment124 |
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| 149 | 139 | | for the additional period not to exceed 120 days.125 |
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| 150 | 140 | | (D)(i) If, by the end of the nine-month period provided for in division (i) of126 |
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| 151 | 141 | | subparagraph (C) of this paragraph or at any prior time the accused's condition127 |
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| 152 | 142 | | warrants, the accused is still determined by the department physician or licensed128 |
|---|
| 153 | 143 | | psychologist to be mentally incompetent to stand trial, irrespective of the probability129 |
|---|
| 154 | 144 | | of recovery in the foreseeable future, the department shall report that finding and the130 |
|---|
| 155 | 145 | | reasons therefor to the court. The court shall then follow the procedures in131 |
|---|
| 156 | 146 | | subsection (e) of this Code section for civil commitment or release.132 |
|---|
| 157 | 147 | | (ii) If, by the end of the 120 day period provided for in division (ii) of133 |
|---|
| 158 | 148 | | subparagraph (C) of this paragraph or at any prior time the accused's condition134 |
|---|
| 159 | 149 | | warrants, the accused is still determined by the department physician or licensed135 |
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| 160 | 150 | | psychologist to be mentally incompetent to stand trial, irrespective of the probability136 |
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| 161 | 151 | | of recovery in the foreseeable future, the charges against the accused shall be137 |
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| 162 | 152 | | dismissed as a matter of law by the court and the accused shall be referred to a138 |
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| 163 | 153 | | community service board unless otherwise ordered by the court for cause shown upon139 |
|---|
| 164 | 154 | | the hearing of a motion by the prosecuting attorney."140 |
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| 165 | 155 | | SECTION 3.141 |
|---|
| 166 | 156 | | Article 2 of Chapter 1 of Title 37 of the Official Code of Georgia Annotated, relating to142 |
|---|
| 167 | 157 | | powers and duties of the Department of Behavioral Health and Developmental Disabilities,143 |
|---|
| 168 | 158 | | is amended by revising Code Section 37-1-28, relating to conviction data, as follows:144 |
|---|
| 173 | 162 | | (a) As used in this Code section, the term 'conviction data' means a record of a finding or146 |
|---|
| 174 | 163 | | verdict of guilty or a plea of guilty or a plea of nolo contendere with regard to any crime,147 |
|---|
| 175 | 164 | | regardless of whether an appeal of the conviction has been sought.148 |
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| 176 | 165 | | (b) The department may receive from any law enforcement agency conviction data that is149 |
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| 177 | 166 | | relevant to a person whom the department or its contractors is considering as a final150 |
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| 178 | 167 | | selectee for employment in a position the duties of which involve direct care, treatment,151 |
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| 181 | 169 | | also receive conviction data which is relevant to a person whom the department or its153 |
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| 182 | 170 | | contractors is considering as a final selectee for employment in a position if, in the154 |
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| 183 | 171 | | judgment of the employer, a final employment decision regarding the selectee can only be155 |
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| 184 | 172 | | made by a review of conviction data in relation to the particular duties of the position and156 |
|---|
| 185 | 173 | | the security and safety of clients, the general public, or other employees.157 |
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| 186 | 174 | | (c) The department may receive from any law enforcement agency conviction data which158 |
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| 187 | 175 | | is relevant to a person whom the department or its contractors is considering as a final159 |
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| 188 | 176 | | selectee for employment in a position if, in the judgment of the employer, a final160 |
|---|
| 189 | 177 | | employment decision regarding the selectee can only be made by a review of conviction161 |
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| 190 | 178 | | data in relation to the particular duties of the position and the security and safety of clients,162 |
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| 191 | 179 | | the general public, or other employees.163 |
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| 192 | 180 | | (c)(d) The department shall establish a uniform method of obtaining conviction data under164 |
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| 193 | 181 | | subsection (a) of this Code section which shall be applicable to the department and its165 |
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| 194 | 182 | | contractors. Such uniform method shall require the submission to the Georgia Crime166 |
|---|
| 195 | 183 | | Information Center of fingerprints and the records search fee in accordance with Code167 |
|---|
| 196 | 184 | | Section 35-3-35. Upon receipt thereof, the Georgia Crime Information Center shall168 |
|---|
| 197 | 185 | | promptly transmit fingerprints to the Federal Bureau of Investigation for a search of bureau169 |
|---|
| 198 | 186 | | records and an appropriate report and shall promptly conduct a search of its own records170 |
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| 199 | 187 | | and records to which it has access. After receiving the fingerprints and fee, the Georgia171 |
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| 208 | 194 | | employment decisions or decisions concerning individuals in the care of the department176 |
|---|
| 209 | 195 | | and shall be privileged and shall not be released or otherwise disclosed to any other person177 |
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| 210 | 196 | | or agency. Immediately following the employment decisions or upon receipt of the178 |
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| 211 | 197 | | conviction data, all such conviction data collected by the department or its agent shall be179 |
|---|
| 212 | 198 | | maintained by the department or agent pursuant to laws regarding and the rules or180 |
|---|
| 213 | 199 | | regulations of the Federal Bureau of Investigation and the Georgia Crime Information181 |
|---|
| 214 | 200 | | Center, as is applicable. Penalties for the unauthorized release or disclosure of any182 |
|---|
| 215 | 201 | | conviction data shall be as prescribed pursuant to laws regarding and rules or regulations183 |
|---|
| 216 | 202 | | of the Federal Bureau of Investigation and the Georgia Crime Information Center, as is184 |
|---|
| 217 | 203 | | applicable.185 |
|---|
| 218 | 204 | | (e)(f) The department may promulgate written rules and regulations to implement the186 |
|---|
| 219 | 205 | | provisions of this Code section.187 |
|---|
| 220 | 206 | | (f)(g) The department shall be authorized to conduct a name or descriptor based check of188 |
|---|
| 221 | 207 | | any person's criminal history information, including arrest and conviction data, and other189 |
|---|
| 222 | 208 | | information from the Georgia Crime Information Center regarding any adult person who190 |
|---|
| 223 | 209 | | provides care or is in contact with persons under the care of the department without the191 |
|---|
| 224 | 210 | | consent of such person and without fingerprint comparison to the fullest extent permissible192 |
|---|
| 225 | 211 | | by federal and state law.193 |
|---|
| 226 | 212 | | (g)(h) If the department is participating in the program described in subparagraph (a)(1)(F)194 |
|---|
| 227 | 213 | | of Code Section 35-3-33, the Georgia Bureau of Investigation and the Federal Bureau of195 |
|---|
| 228 | 214 | | Investigation shall be authorized to retain fingerprints obtained pursuant to this Code196 |
|---|
| 229 | 215 | | section for such program and the department shall notify the individual whose fingerprints197 |
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| 230 | 216 | | were taken of the parameters of such retention."198 |
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