72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 95
A-Engrossed
House Bill 2047
Ordered by the House March 25
Including House Amendments dated March 25
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Requires { - police officers and reserve officers - }
{ + peace officers + } to notify detained foreign nationals of
detainees'
{ - rights - } { + right to communicate with consulate + }
under Vienna Convention on Consular Relations. Requires Board on
Public Safety Standards and Training to ensure that police
officers and certified reserve officers are trained regarding
responsibilities under convention.
Requires certain health care professionals, under specified
circumstances, to notify foreign nationals of rights under
convention.
A BILL FOR AN ACT
Relating to Vienna Convention on Consular Relations; amending ORS
181.642, 426.070, 426.228 and 426.234.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 181.642 is amended to read:
181.642. The Board on Public Safety Standards and Training
shall ensure that all police officers and certified reserve
officers { + are trained to:
(1) + } { - Are trained to - } Investigate, identify and
report crimes:
{ - (1) - } { + (a) + } Motivated by prejudice based on the
perceived race, color, religion, national origin, sexual
orientation, marital status, political affiliation or beliefs,
membership or activity in or on behalf of a labor organization or
against a labor organization, physical or mental handicap, age,
economic or social status or citizenship of the victim; and
{ - (2) - } { + (b) + } That constitute abuse, as defined
in ORS 419B.005, or domestic violence.
{ + (2) Understand the requirements of the Vienna Convention
on Consular Relations and identify situations in which the
officers are required to inform a person of the person's rights
under the convention. + }
SECTION 2. ORS 426.228 is amended to read:
426.228. (1) A peace officer may take into custody a person who
the officer has probable cause to believe is dangerous to self or
to any other person and is in need of immediate care, custody or
treatment for mental illness. As directed by the community mental
health and developmental disabilities program director, a peace
officer shall remove a person taken into custody under this
section to the nearest hospital or nonhospital facility approved
by the Department of Human Services. The officer shall prepare a
written report and deliver it to the treating physician. The
report shall state:
(a) The reason for custody;
(b) The date, time and place the person was taken into custody;
and
(c) The name of the community mental health and developmental
disabilities program director and a telephone number where the
director may be reached at all times.
(2) A peace officer shall take a person into custody when the
community mental health and developmental disabilities program
director, pursuant to ORS 426.233, notifies the peace officer
that the director has probable cause to believe that the person
is imminently dangerous to self or to any other person. As
directed by the community mental health and developmental
disabilities program director, the peace officer shall remove the
person to a hospital or nonhospital facility approved by the
department. The community mental health and developmental
disabilities program director shall prepare a written report that
the peace officer shall deliver to the treating physician. The
report shall state:
(a) The reason for custody;
(b) The date, time and place the person was taken into custody;
and
(c) The name of the community mental health and developmental
disabilities program director and a telephone number where the
director may be reached at all times.
(3) If more than one hour will be required to transport the
person to the hospital or nonhospital facility from the location
where the person was taken into custody, the peace officer shall
obtain, if possible, a certificate from a physician licensed by
the Board of Medical Examiners for the State of Oregon stating
that the travel will not be detrimental to the person's physical
health and that the person is dangerous to self or to any other
person and is in need of immediate care or treatment for mental
illness. The physician shall have personally examined the
allegedly mentally ill person within 24 hours prior to signing
the certificate.
(4) When a peace officer or other authorized person, acting
under this section, delivers a person to a hospital or
nonhospital facility, a physician licensed by the Board of
Medical Examiners for the State of Oregon shall examine the
person immediately. If the physician finds the person to be in
need of emergency care or treatment for mental illness, the
physician shall proceed under ORS 426.232, otherwise the person
shall not be retained in custody. If the person is to be released
from custody, the peace officer or the community mental health
and developmental disabilities program director shall return the
person to the place where the person was taken into custody
unless the person declines that service.
(5) A peace officer may transfer a person in custody under this
section to the custody of a person authorized by the county
governing body under ORS 426.233 (3). The peace officer may meet
the authorized person at any location that is in accordance with
ORS 426.140 to effect the transfer. When transferring a person in
custody to an authorized person, the peace officer shall deliver
the report required under subsections (1) and (2) of this section
to the authorized person.
(6) A person authorized under ORS 426.233 (3) shall take a
person into custody when directed to do so by a peace officer or
by a community mental health and developmental disabilities
program director under ORS 426.233.
(7) A person authorized under ORS 426.233 (3) shall perform the
duties of the peace officer or the community mental health and
developmental disabilities program director required by this
section and ORS 426.233 if the peace officer or the director has
not already done so.
(8) A person authorized under ORS 426.233 (3) may transfer a
person in custody under this section to the custody of another
person authorized under ORS 426.233 (3) or a peace officer. The
authorized person transferring custody may meet another
authorized person or a peace officer at any location that is in
accordance with ORS 426.140 to effect the transfer.
{ + (9)(a) When a peace officer takes a person into custody
under this section, and the peace officer reasonably suspects
that the person is a foreign national, the peace officer shall
inform the person of the person's right to communicate with an
official from the consulate of the person's country.
(b) A peace officer is not civilly or criminally liable for
failure to provide the information required by this subsection.
Failure to provide the information required by this subsection
does not in itself constitute grounds for the exclusion of
evidence that would otherwise be admissible in a proceeding. + }
SECTION 3. ORS 426.070 is amended to read:
426.070. (1) Any of the following may initiate commitment
procedures under this section by giving the notice described
under subsection (2) of this section:
(a) Two persons;
(b) The county health officer; or
(c) Any magistrate.
(2) For purposes of subsection (1) of this section, the notice
must comply with the following:
(a) It must be in writing under oath;
(b) It must be given to the community mental health and
developmental disabilities program director or a designee of the
director in the county where the allegedly mentally ill person
resides;
(c) It must state that a person within the county other than
the person giving the notice is a mentally ill person and is in
need of treatment, care or custody;
(d) If the commitment proceeding is initiated by two persons
under subsection (1)(a) of this section, it may include a request
that the court notify the two persons:
(A) Of the issuance or nonissuance of a warrant under this
section; or
(B) Of the court's determination under ORS 426.130 (1); and
(e) If the notice contains a request under paragraph (d) of
this subsection, it must also include the addresses of the two
persons making the request.
(3) Upon receipt of a notice under subsections (1) and (2) of
this section or when notified by a circuit court that the court
received notice under ORS 426.234, the community mental health
and developmental disabilities program director, or designee of
the director, shall:
(a) Immediately notify the judge of the court having
jurisdiction for that county under ORS 426.060 of the
notification described in subsections (1) and (2) of this
section.
(b) Immediately notify the Department of Human Services if
commitment is proposed because the person appears to be a
mentally ill person, as defined in ORS 426.005 (1)(d)(C). When
such notice is received, the department may verify, to the extent
known by the department, whether or not the person meets the
criteria described in ORS 426.005 (1)(d)(C)(i) and (ii) and so
inform the director or designee of the director.
(c) Initiate an investigation under ORS 426.074 to determine
whether there is probable cause to believe that the person is in
fact a mentally ill person.
(4) Upon completion, a recommendation based upon the
investigation report under ORS 426.074 shall be promptly
submitted to the court. If the community mental health and
developmental disabilities program director determines that
probable cause does not exist to believe that a person released
from detention under ORS 426.234 (2)(c) or (3)(b) is a mentally
ill person, the community mental health and developmental
disabilities program director shall not submit a recommendation
to the court.
(5) When the court receives notice under subsection (3) of this
section:
(a) If the court, following the investigation, concludes that
there is probable cause to believe that the person investigated
is a mentally ill person, it shall, through the issuance of a
citation as provided in ORS 426.090, cause the person to be
brought before it at a time and place as it may direct, for a
hearing under ORS 426.095 to determine whether the person is
mentally ill. The person shall be given the opportunity to appear
voluntarily at the hearing unless the person fails to appear or
unless the person is detained pursuant to paragraph (b) of this
subsection.
(b)(A) The judge may cause the allegedly mentally ill person to
be taken into custody pending the investigation or hearing by
issuing a warrant of detention under this subsection. A judge may
only issue a warrant under this subsection if the court finds
that there is probable cause to believe that failure to take the
person into custody would pose serious harm or danger to the
person or to others.
(B) To cause the custody of a person under this paragraph, the
judge must issue a warrant of detention to the community mental
health and developmental disabilities program director or
designee, the sheriff of the county or designee, directing that
person to take the allegedly mentally ill person into custody and
produce the person at the time and place stated in the warrant.
(C) At the time the person is taken into custody, the person
shall be informed by the community mental health and
developmental disabilities program director, the sheriff or a
designee of the following:
(i) The person's rights with regard to representation by or
appointment of counsel as described in ORS 426.100; { - and - }
(ii) The warning under ORS 426.123 { + ; and
(iii) The person's right, if the community mental health and
developmental disabilities program director, sheriff or designee
reasonably suspects that the person is a foreign national, to
communicate with an official from the consulate of the person's
country. A community mental health and developmental disabilities
program director, sheriff or designee is not civilly or
criminally liable for failure to provide the information required
by this sub-subparagraph. Failure to provide the information
required by this sub-subparagraph does not in itself constitute
grounds for the exclusion of evidence that would otherwise be
admissible in a proceeding + }.
(D) The court may make any orders for the care and custody of
the person prior to the hearing as it considers necessary.
(c) If the notice includes a request under subsection (2)(d)(A)
of this section, the court shall notify the two persons of the
issuance or nonissuance of a warrant under this subsection.
SECTION 4. ORS 426.234 is amended to read:
426.234. (1) At the time a person is admitted to or retained in
a hospital or nonhospital facility under ORS 426.232 or 426.233,
a physician, nurse or qualified mental health professional at the
hospital or nonhospital facility shall:
(a) Inform the person of the person's right to representation
by or appointment of counsel as described in ORS 426.100;
(b) Give the person the warning under ORS 426.123;
(c) Immediately examine the allegedly mentally ill person;
{ - and - }
(d) Set forth, in writing, the condition of the person and the
need for emergency care or treatment { + ; and
(e) If the physician, nurse or qualified mental health
professional reasonably suspects that the person is a foreign
national, inform the person of the person's right to communicate
with an official from the consulate of the person's country. A
physician, nurse or qualified mental health professional is not
civilly or criminally liable for failure to provide the
information required by this paragraph. Failure to provide the
information required by this paragraph does not in itself
constitute grounds for the exclusion of evidence that would
otherwise be admissible in a proceeding + }.
(2)(a) At the time the person is admitted to or retained in a
hospital under ORS 426.232, the physician shall contact the
community mental health and developmental disabilities program
director of the county in which the person resides, if the county
of residence is different from the county in which the hospital
is located. The community mental health and developmental
disabilities program director may request that the physician
notify the circuit court in the county in which the person
resides. If the community mental health and developmental
disabilities program director does not make the request
authorized by this paragraph, the physician shall notify,
immediately and in writing, the circuit court in the county in
which the person is hospitalized.
(b) At the time the person is admitted to a hospital under ORS
426.232 after being brought to the hospital by a peace officer
under ORS 426.228, the physician shall contact the community
mental health and developmental disabilities program director of
the county in which the person is hospitalized. The community
mental health and developmental disabilities program director of
the county in which the person is hospitalized may request that
the physician notify the circuit court in the county in which the
person is hospitalized. If the community mental health and
developmental disabilities program director does not make the
request authorized by this paragraph, the physician shall notify,
immediately and in writing, the circuit court in the county in
which the person was taken into custody.
(c) If, at any time prior to the hearing under ORS 426.070 to
426.130, the physician responsible for a person admitted or
retained under ORS 426.232 determines that the person is not
dangerous to self or others and is not in need of emergency care
or treatment for mental illness, the physician may release the
person from the detention authorized by ORS 426.232. The
physician shall immediately notify the circuit court notified
under this subsection and the community mental health and
developmental disabilities program director of the person's
release from detention.
(3)(a) At the time the person is admitted to or retained in a
nonhospital facility under ORS 426.233, the community mental
health and developmental disabilities program director in the
county where the person was taken into custody shall contact the
community mental health and developmental disabilities program
director of the county in which the person resides, if the county
of residence is different from the county in which the person was
taken into custody. The community mental health and developmental
disabilities program director of the county in which the person
resides may request that the community mental health and
developmental disabilities program director of the county in
which the person was taken into custody notify the circuit court
in the county where the person resides. Otherwise, the community
mental health and developmental disabilities program director of
the county in which the person was taken into custody shall
notify, immediately and in writing, the circuit court in the
county in which the person was taken into custody.
(b) If, at any time prior to the hearing under ORS 426.070 to
426.130, a community mental health and developmental disabilities
program director, after consultation with a physician, determines
that a person admitted or retained under ORS 426.233 is not
dangerous to self or others and is not in need of immediate care,
custody or treatment for mental illness, the community mental
health and developmental disabilities program director may
release the person from detention. The community mental health
and developmental disabilities program director shall immediately
notify the circuit court originally notified under paragraph (a)
of this subsection of the person's release from detention.
(4) When the judge of the circuit court receives notice under
subsection (2) or (3) of this section, the judge immediately
shall commence proceedings under ORS 426.070 to 426.130. In a
county having a population of 100,000 or more, and when feasible
in a county with a lesser population, the community mental health
and developmental disabilities program director or designee who
directs the peace officer or other authorized person to take a
person into custody under ORS 426.233 shall not also conduct the
investigation as provided for under ORS 426.074. Except when a
person is being held under ORS 426.237 (1)(b), a person shall not
be held under ORS 426.232 or 426.233 for more than five judicial
days without a hearing being held under ORS 426.070 to 426.130.
(5) When the judge of the circuit court receives notice under
subsection (2)(c) or (3)(b) of this section that a person has
been released, and unless the court receives the recommendation
required by ORS 426.070 (4), the judge shall dismiss the case no
later than 14 days after the date the person was initially
detained.
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