§ 161.371 — Procedures upon commitment of defendant; placement process; maximum term of commitment

Oregon § 161.371

• Jurisdiction: Oregon
• Vol.: 4
• Title 16: Crimes and Punishments
• Ch. 161: General Provisions

Text

(1) The superintendent of a state mental hospital or director of a facility to which the defendant is committed under ORS 161.370 shall cause the defendant to be evaluated by a certified evaluator within 60 days from the defendant’s delivery into the superintendent’s or director’s custody, for the purpose of determining whether there is a substantial probability that, in the foreseeable future, the defendant will have fitness to proceed. In addition, the superintendent or director shall:
(a) Immediately notify the committing court if the defendant, at any time, gains or regains fitness to proceed or if there is no substantial probability that, within the foreseeable future, the defendant will gain or regain fitness to proceed.
(b) Within 90 days of the defendant’s delivery into the superintendent’s or director’s custody, notify the committing court that:
(A) The defendant has present fitness to proceed;
(B) There is no substantial probability that, in the foreseeable future, the defendant will gain or regain fitness to proceed; or
(C) There is a substantial probability that, in the foreseeable future, the defendant will gain or regain fitness to proceed. If the probability exists, the superintendent or director shall give the court an estimate of the time in which the defendant, with appropriate treatment, is expected to gain or regain fitness to proceed.
(c) Notify the court if court-ordered involuntary medication is necessary for the defendant to gain or regain fitness to proceed and, if appropriate, submit a report to the court under ORS 161.372.
(2)(a) If the superintendent of the state mental hospital or director of the facility to which the defendant is committed determines that there is a substantial probability that, in the foreseeable future, the defendant will gain or regain fitness to proceed, unless the court otherwise orders, the defendant shall remain in the superintendent’s or director’s custody where the defendant shall receive treatment designed for the purpose of enabling the defendant to gain or regain fitness to proceed. In keeping with the notice requirement under subsection (1)(b) of this section, the superintendent or director shall, for the duration of the defendant’s period of commitment, submit a progress report to the committing court, concerning the defendant’s fitness to proceed, at least once every 180 days as measured from the date of the defendant’s delivery into the superintendent’s or director’s custody.
(b) A progress report described in paragraph (a) of this subsection may consist of an update to:
(A) The original examination report conducted under ORS 161.365; or
(B) An evaluation conducted under subsection (1) of this section, if the defendant did not receive an examination under ORS 161.365.
(3)(a) Notwithstanding subsection (2) of this section, if the superintendent of the state mental hospital or director of the facility to which the defendant is committed determines that a hospital level of care is no longer necessary due to the acuity of symptoms of the defendant’s qualifying mental disorder, the superintendent or director may file notice of the determination with the court. Upon receipt of the notice, the court shall order that a community mental health program director or the director’s designee, within five judicial days:
(A) Consult with the defendant and with any local entity that would be responsible for providing community restoration services, if the defendant were to be released in the community, to determine whether community restoration services are present and available in the community;
(B) Determine, if the defendant is subject to a secure placement determination under ORS 161.370 (7), whether a placement at a facility that is of the most restrictive class under the classification system described in ORS 426.035 is present and available; and
(C) Provide the court and the parties with a report with recommendations from the consultation.
(b) As part of the consultation described in paragraph (a) of this subsection, the director or designee may be assisted by any staff member of the Oregon Health Authority who is able to assist in identifying and securing placements. If the director or designee identifies one or more appropriate placements for the defendant, the director or designee shall specify the placements in the consultation report.
(c) If the defendant is subject to a secure placement determination under ORS 161.370 (7), the director or designee may recommend a placement option other than a placement at a facility that is of the most restrictive class under the classification system described in ORS 426.035 only if, in the opinion of the director, the defendant may be appropriately served in such an environment.
(d)(A) If, during the consultation, the director or designee determines that there are one or more appropriate placements for the defendant, the consultation report must contain information, when available, on whether the proposed placements are currently accepting referrals or have an open waiting list.
(B) If, during the consultation, the director or designee determines that there are no appropriate placements for the defendant, the director shall notify the Oregon Health Authority. The director or designee shall provide in the consultation report information concerning why there are no appropriate placements. Upon the court’s receipt of the report, the defendant’s commitment is continued, and no further action of the court is required except as described in subsection (6) of this section.
(4)(a) Upon the provision to the court and the parties of a consultation report with recommended placements under subsection (3)(d)(A) of this section, either party may object to any placement option by filing a motion within 10 days after the date the consultation report was provided.
(b) Except as otherwise provided in paragraphs (c) and (d) of this subsection, the court shall, within 10 days after the filing of an objection under paragraph (a) of this subsection, set a hearing for the purpose of hearing the objection.
(c) At either party’s request, or on the court’s own motion, the court may defer hearing the objection until the placement hearing described in subsection (5) of this section.
(d) If both parties object to all proposed placements, the defendant’s commitment is continued, and no further action of the court is required except as described in subsection (6) of this section.
(e) If both parties indicate, prior to the expiration of the time period for filing an objection, that neither party will be filing an objection, the court shall notify the community mental health program director and proceed as described in subsection (5) of this section.
(f) At the hearing on the objection, the court shall determine whether to grant the objection to a proposed placement. If the court:
(A) Finds that a proposed placement subject to the objection is not appropriate, the court shall grant the objection motion with respect to that placement. If a proposed placement option remains following the court’s decision on the motion, the court shall proceed as described in subsection (5) of this section. If no proposed placement options remain following the court’s decision, the commitment of the defendant is continued, and no further action of the court is required except as described in subsection (6) of this section.
(B) Finds that a proposed placement subject to an objection is appropriate, the court shall deny the motion with respect to that placement and proceed as described in subsection (5) of this section.
(g) At a hearing described in this subsection, the court may enter an order continuing the defendant’s commitment and directing the community mental health program director to discontinue attempts to identify appropriate placements for the defendant.
(h) A hearing described in this subsection is a critical stage of the proceeding for purposes of ORS 147.500 to 147.550.
(5)(a) If a motion to object to a proposed placement is not filed, if the court defers hearing an objection to a proposed placement or if an appropriate placement option remains following a hearing described in subsection (4) of this section, the community mental health program director shall continue to attempt to secure all proposed placements for the defendant that were not subject to a granted objection and shall provide a placement status update, in the form of a written memo or report, to the court no less frequently than every 30 days.
(b) As soon as the director has secured a placement for the defendant and obtained an anticipated availability date for the placement, the director shall immediately notify the court and the parties, and when possible provide information concerning the availability date and the timing of transfer to the placement.
(c) The court shall hold a hearing as soon as practicable after receiving the notice described in paragraph (b) of this subsection to confirm the placement and set any conditions of release. The court may hear an objection filed under subsection (4) of this section that was deferred, or may hear a new or renewed objection upon the showing of changed circumstances or new information by the objecting party.
(d) A hearing described this subsection is a critical stage of the proceeding for purposes of ORS 147.500 to 147.550.
(6)(a) If the report from the consultation described in subsection (3) of this section does not identify any appropriate placements for the defendant, if no appropriate placement options remain following the granting of a motion objecting to a proposed placement, or if both parties object to all proposed placements:
(A) The community mental health program director shall continue to regularly evaluate placement options for the defendant, using guidance from the consultation report, and provide status updates to the court, in the form of a written memo or report, no less frequently than every 30 days.
(B) The court may at any time set a hearing on the case and enter appropriate orders, including an order directing the community mental health program director to discontinue evaluating placement options for the defendant until a new notice is received under subsection (3)(a) of this section. If the court enters such an order, the superintendent of the state mental hospital or director of the facility to which the defendant is committed may only issue a new notice under subsection (3)(a) of this section if circumstances regarding the defendant or available placement options have changed.
(b) If the community mental health program director identifies an appropriate placement for the defendant while evaluating placement options under paragraph (a)(A) of this subsection, the director shall immediately notify the court and the parties. If the defendant is subject to a secure placement determination under ORS 161.370 (7), the director or designee may recommend a placement option other than a placement at a facility that is of the most restrictive class under the classification system described in ORS 426.035 only if, in the opinion of the director, the defendant may be appropriately served in such an environment. The parties may file a motion objecting to any of the placement options as described in subsection (4) of this section.
(7)(a) Notwithstanding ORS 161.370 (7)(d), the determination by a court under ORS 161.370 (7), that the defendant may only be discharged to a facility that is of the most restrictive class under the classification system described in ORS 426.035, may be reconsidered by the court at the request of either party, or on the court’s own motion, as part of a hearing on an objection to a placement under subsection (4) of this section or during a hearing described in subsection (5) of this section, only when there has been a substantial change in the defendant’s circumstances since the original determination.
(b) The court shall consider the criteria described in ORS 161.370 (7)(b) when reconsidering the determination under this subsection.
(c) A hearing at which the court reconsiders the determination under this subsection is a critical stage of the proceeding for purposes of ORS 147.500 to 147.550.
(8)(a) If a defendant remains committed under this section, the court shall determine within a reasonable period of time whether there is a substantial probability that, in the foreseeable future, the defendant will gain or regain fitness to proceed. However, regardless of the number of charges with which the defendant is accused, in no event shall the defendant be committed for longer than whichever of the following, measured from the defendant’s initial custody date, is shorter:
(A) Three years; or
(B) A period of time equal to the maximum sentence the court could have imposed if the defendant had been convicted.
(b) For purposes of calculating the maximum period of commitment described in paragraph (a) of this subsection:
(A) The initial custody date is the date on which the defendant is first committed under this section on any charge alleged in the accusatory instrument; and
(B) The defendant shall be given credit against each charge alleged in the accusatory instrument:
(i) For each day the defendant is committed under this section, whether the days are consecutive or are interrupted by a period of time during which the defendant has gained or regained fitness to proceed; and
(ii) Unless the defendant is charged on any charging instrument with aggravated murder or a crime listed in ORS 137.700 (2), for each day the defendant is held in jail before and after the date the defendant is first committed, whether the days are consecutive or are interrupted by a period of time during which the defendant lacks fitness to proceed.
(c) The superintendent of the state mental hospital or director of the facility to which the defendant is committed shall notify the committing court of the defendant’s impending discharge 30 days before the date on which the superintendent or director is required to discharge the defendant under this subsection.
(9)(a) All notices required under this section shall be filed with the court and may be filed electronically. The clerk of the court shall cause copies of the notices to be delivered to both the district attorney and the counsel for the defendant.
(b) When the committing court receives a notice from the superintendent or director under subsection (1) of this section concerning the defendant’s progress or lack thereof, or under subsection (8) of this section concerning the defendant’s impending discharge, the committing court shall determine, after a hearing if a hearing is requested, whether the defendant presently has fitness to proceed.
(10) If at any time the court determines that the defendant lacks fitness to proceed, the court shall further determine whether the defendant is entitled to discharge under subsection (8) of this section. If the court determines that the defendant is entitled to discharge under subsection (8) of this section, the court shall dismiss, without prejudice and in accordance with ORS 161.367 (6), all charges against the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070, 426.701 or 427.235 to 427.292. [2021 c.395 §5; 2023 c.227 §3; 2025 c.175 §8; 2025 c.559 §53]
(Temporary provisions relating to maximum periods of commitment and community restoration)