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H. 3120
STATUS INFORMATION
General Bill
Sponsors: Rep. Kirsh
Document Path: l:\council\bills\nbd\11009ac07.doc
Introduced in the House on January 9, 2007
Currently residing in the House Committee on Judiciary
Summary: Mentally ill person's capacity to stand trial
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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12/13/2006 House Prefiled
12/13/2006 House Referred to Committee on Judiciary
1/9/2007 House Introduced and read first time HJ-66
1/9/2007 House Referred to Committee on Judiciary HJ-66
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 44-23-410, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DETERMINATION OF CAPACITY TO STAND TRIAL OF PERSONS CHARGED WITH A CRIME OR CIVIL CONTEMPT, SO AS TO PROVIDE THAT THIS PROVISION APPLIES TO MAGISTRATES' COURT, TO PROVIDE A PROCEDURE TO SUSPEND AND REINSTATE A PERSON'S DRIVER'S LICENSE OR PRIVILEGE TO DRIVE IF THE PERSON IS UNABLE TO STAND TRIAL BECAUSE OF A MENTAL CONDITION, AND TO PROVIDE A PROCEDURE TO SUSPEND AND REINSTATE A PERSON'S DRIVER'S LICENSE OR PRIVILEGE TO DRIVE IF THE PERSON HAS SUFFERED A RELAPSE OF A MENTAL CONDITION BEFORE THE PERSON'S TRIAL DATE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-23-410 of the 1976 Code, as last amended by Act 400 of 2006, is further amended to read:
"Section 44-23-410. (A) Whenever a judge of the circuit court or family court or magistrates' court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:
(1) order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability. The examination must be made within thirty days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or
(2) order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days.
(B) Before the expiration of the examination period or the examination and observation period, the Department of Mental Health or the Department of Disabilities and Special Needs, as appropriate, may apply to a judge designated by the Chief Justice of the South Carolina Supreme Court for an extension of time up to fifteen days to complete the examination or the examination and observation.
(C) If the person or the person's counsel requests, the court may authorize the person to be examined additionally by a designated examiner of the person's choice. However, the court may prescribe the time and conditions under which the independent examination is conducted.
(D) If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on the person's mental capacity.
(E) If a person or his attorney, or both, notifies the court or the court determines that the person is unable to stand trial because of a mental condition, the court shall confiscate the person's driver's license. The court, within five days, shall notify the Department of Public Safety of this action. The department immediately shall suspend the person's driver's license or privilege to drive. The department shall notify the person of the suspension pursuant to Section 56-1-350. The person's driver's license or privilege to drive remains under suspension until the court disposes of the case. If the person does not possess a driver's license, the court shall obtain a signed affidavit from the person stating that he does not possess a driver's license.
(F) If a person is mentally able to stand trial and subsequently has a relapse of a mental condition before the trial date, or the person or his attorney, or both, notifies the court that the person is unable to stand trial or the court determines that the person is unable to stand trial, the court shall confiscate the person's driver's license. The court, within five days, shall notify the Department of Public Safety of this action. The department shall notify the person of the suspension pursuant to Section 56-1-350. The person's driver's license or privilege to drive remains under suspension until the court disposes of the case. If the person does not possess a driver's license, the court shall obtain a signed affidavit from the person stating that he does not possess a driver's license."
SECTION 2. This act takes effect upon approval by the Governor.
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