HB2402 - 531R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-609, Arizona Revised Statutes, is amended to read:

START_STATUTE13-609. Transfer of criminal justice information; definition

A. If a person is found incompetent by a court pursuant to rule 11, Arizona rules of criminal procedure, the court shall transmit the case information and the date of the incompetency finding to the supreme court and the motor vehicle division in the department of transportation. The supreme court shall transmit the case information and the date of the incompetency finding to the department of public safety. The department of public safety shall transmit the case information and the date of the incompetency finding to the national instant criminal background check system.

B. If a person is subsequently found competent, the court shall transmit the case information to the supreme court. The supreme court shall transmit the finding of competency to the department of public safety and the motor vehicle division in the department of transportation. The department of public safety shall transmit the finding of competency to the national instant criminal background check system.

C. If a person is found guilty except insane, the court shall transmit the case information and the date of the verdict to the supreme court. The supreme court shall transmit the case information and the date of the verdict to the department of public safety and the motor vehicle division in the department of transportation. The department of public safety shall transmit the case information and the date of the verdict to the national instant criminal background check system.

D. On request, the clerk of the court that originally found the defendant incompetent or in which the defendant was found guilty except insane shall provide certified copies of the order to a law enforcement or prosecuting agency that is investigating or prosecuting a prohibited possessor as defined in section 13‑3101.

E. For the purposes of this section, "case information" means the person's name, sex and date of birth, the last four digits of the person's social security number, if available, the person's driver license or nonoperating identification license number, if available, the court case number and the court originating agency identification number.

Sec. 2. Title 13, chapter 6, Arizona Revised Statutes, is amended by adding section 13-611, to read:

START_STATUTE13-611. Reporting prohibited possessor information to the department of transportation; motor vehicle division records; definition

A. If a person is convicted of or adjudicated delinquent for an offense that makes the person a prohibited possessor, the sentencing court shall transmit the person's name, sex, date of birth, the driver license or nonoperating identification license number, if available, the court case number and the court originating agency identification number to the motor vehicle division in the department of transportation. If the court transmits a record pursuant to this section, the court must immediately transmit a notice of removal to the motor vehicle division for any person whose right to possess or use a firearm is restored by the court or if the court makes a determination that the person is no longer a prohibited possessor.

B. The motor vehicle division in the department of transportation shall make a notation on the person's driving record that contains the information that the motor vehicle division receives pursuant to this section and sections 13‑609, 13‑925, 14‑5304 and 36‑540. If the person does not have a driving record, the motor vehicle division shall make a record that contains the information required by this subsection. The motor vehicle division shall make the record readily available to peace officers in this state. A peace officer may use the information contained in the person's driving record to determine if the person may be a prohibited possessor.

C. For the purposes of this section, "prohibited possessor" has the same meaning prescribed in section 13‑3101. END_STATUTE

Sec. 3. Section 13-925, Arizona Revised Statutes, is amended to read:

START_STATUTE13-925. Restoration of right to possess a firearm; mentally ill persons; petition

A. A person may petition the court that entered an order, finding or adjudication that resulted in the person being a prohibited possessor as defined in section 13‑3101, subsection A, paragraph 7, subdivision (a) or subject to 18 United States Code section 922(d)(4) or (g)(4) to restore the person's right to possess a firearm.

B. The person or the person's guardian or attorney may file the petition. The petition shall be served on the attorney for the state who appeared in the underlying case.

C. On the filing of the petition the court shall set a hearing. At the hearing, the person shall present psychological or psychiatric evidence in support of the petition. The state shall provide the court with the person's criminal history records, if any. The court shall receive evidence on and consider the following before granting or denying the petition:

1. The circumstances that resulted in the person being a prohibited possessor as defined in section 13‑3101, subsection A, paragraph 7, subdivision (a) or subject to 18 United States Code section 922(d)(4) or (g)(4).

2. The person's record, including the person's mental health record and criminal history record, if any.

3. The person's reputation based on character witness statements, testimony or other character evidence.

4. Whether the person is a danger to self or others or has a persistent, acute or grave disabilities disability or whether the circumstances that led to the original order, adjudication or finding remain in effect.

5. Any change in the person's condition or circumstances that is relevant to the relief sought.

6. Any other evidence deemed admissible by the court.

D. The petitioner shall prove by clear and convincing evidence both of the following:

1. The petitioner is not likely to act in a manner that is dangerous to public safety.

2. Granting the requested relief is not contrary to the public interest.

E. At the conclusion of the hearing, the court shall issue findings of fact and conclusions of law.

F. If the court grants the petition for relief, the original order, finding or adjudication is deemed not to have occurred for the purposes of applying section 13‑3101, subsection A, paragraph 7, subdivision (a), Public Law 110-180, section 105(a) or 18 United States Code section 922(d)(4) or (g)(4) to that person.

G. The granting of a petition under this section only restores the person's right to possess a firearm and does not apply to and has no effect on any other rights or benefits the person receives.

H. The court shall promptly notify the supreme court, the motor vehicle division in the department of transportation and the department of public safety of an order granting a petition under this section. As soon thereafter as practicable the supreme court, the motor vehicle division and the department of public safety shall update, correct, modify or remove the person's record in any database that the supreme court, the motor vehicle division or the department of public safety maintains and makes available to the national instant criminal background check system consistent with the rules pertaining to the database or peace officers in this state. Within ten business days after receiving the notification from the court, the department shall notify the United States attorney general that the person no longer falls within the provisions of section 13‑3101, subsection A, paragraph 7, subdivision (a) or 18 United States Code section 922(d)(4) or (g)(4).

Sec. 4. Section 14-5304, Arizona Revised Statutes, is amended to read:

START_STATUTE14-5304. Findings; limitations; filing; fingerprinting

A. In exercising its appointment authority pursuant to this chapter, the court shall encourage the development of maximum self‑reliance and independence of the incapacitated person.

B. The court may appoint a general or limited guardian as requested if the court finds by clear and convincing evidence that:

1. The person for whom a guardian is sought is incapacitated.

2. The appointment is necessary to provide for the demonstrated needs of the incapacitated person.

3. The person's needs cannot be met by less restrictive means, including the use of appropriate technological assistance.

C. In conformity with the evidence regarding the extent of the ward's incapacity, the court may appoint a limited guardian and specify time limits on the guardianship and limitations on the guardian's powers.

D. The guardian shall file an acceptance of appointment with the appointing court.

E. The court may require each person who seeks appointment as a guardian to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation. The court shall submit the person's completed fingerprint card to the department of public safety. The person shall bear the cost of obtaining the person's criminal history record information. The cost shall not exceed the actual cost of obtaining the person's criminal history record information. Criminal history records checks shall be conducted pursuant to section 41‑1750 and Public Law 92‑544. The department of public safety may exchange this fingerprint data with the federal bureau of investigation. This subsection does not apply to a fiduciary who is licensed pursuant to section 14‑5651 or an employee of a financial institution.

F. The court shall make a specific finding as to whether the appointment of a guardian is due solely to the ward's physical incapacity.

G. Unless the court makes a specific finding that the appointment of a guardian is due solely to the ward's physical incapacity under subsection F of this section, at the time of appointing a guardian, the court shall transmit the ward's name, sex and date of birth, the last four digits of the ward's social security number, if available, the ward's driver license or nonoperating identification license number, if available, the court case number, the court originating agency identification number and the date of the guardian's appointment to the supreme court. The supreme court shall transmit the information to the department of public safety and the motor vehicle division in the department of transportation. The department of public safety shall transmit the information to the national instant criminal background check system. END_STATUTE

Sec. 5. Section 36-540, Arizona Revised Statutes, is amended to read:

START_STATUTE36-540. Court options

A. If the court finds by clear and convincing evidence that the proposed patient, as a result of mental disorder, is a danger to self, is a danger to others, has a persistent or acute disability or a grave disability and is in need of treatment, and is either unwilling or unable to accept voluntary treatment, the court shall order the patient to undergo one of the following:

1. Treatment in a program of outpatient treatment.

2. Treatment in a program consisting of combined inpatient and outpatient treatment.

3. Inpatient treatment in a mental health treatment agency, in a hospital operated by or under contract with the United States department of veterans affairs to provide treatment to eligible veterans pursuant to article 9 of this chapter, in the state hospital or in a private hospital, if the private hospital agrees, subject to the limitations of section 36‑541.

B. The court shall consider all available and appropriate alternatives for the treatment and care of the patient. The court shall order the least restrictive treatment alternative available.

C. The court may order the proposed patient to undergo outpatient or combined inpatient and outpatient treatment pursuant to subsection A, paragraph 1 or 2 of this section if the court:

1. Determines that all of the following apply:

(a) The patient does not require continuous inpatient hospitalization.

(b) The patient will be more appropriately treated in an outpatient treatment program or in a combined inpatient and outpatient treatment program.

(d) The patient will not likely become dangerous or suffer more serious physical harm or serious illness or further deterioration if the patient follows a prescribed outpatient treatment plan.

2. Is presented with and approves a written treatment plan that conforms with the requirements of section 36‑540.01, subsection B. If the treatment plan presented to the court pursuant to this subsection provides for supervision of the patient under court order by a mental health agency that is other than the mental health agency that petitioned or requested the county attorney to petition the court for treatment pursuant to section 36‑531, the treatment plan must be approved by the medical director of the mental health agency that will supervise the treatment pursuant to subsection E of this section.

D. An order to receive treatment pursuant to subsection A, paragraph 1 or 2 of this section shall not exceed three hundred sixty‑five days. The period of inpatient treatment under a combined treatment order pursuant to subsection A, paragraph 2 of this section shall not exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F of this section.

E. If the court enters an order for treatment pursuant to subsection A, paragraph 1 or 2 of this section, all of the following apply:

1. The court shall designate the medical director of the mental health treatment agency that will supervise and administer the patient's treatment program.

2. The medical director shall not use the services of any person, agency or organization to supervise a patient's outpatient treatment program unless the person, agency or organization has agreed to provide these services in the individual patient's case and unless the department has determined that the person, agency or organization is capable and competent to do so.

3. The person, agency or organization assigned to supervise an outpatient treatment program or the outpatient portion of a combined treatment program shall be notified at least three days before a referral. The medical director making the referral and the person, agency or organization assigned to supervise the treatment program shall share relevant information about the patient to provide continuity of treatment.

4. During any period of outpatient treatment under subsection A, paragraph 2 of this section, if the court, on motion by the medical director of the patient's outpatient mental health treatment facility, determines that the patient is not complying with the terms of the order or that the outpatient treatment plan is no longer appropriate and the patient needs inpatient treatment, the court, without a hearing and based on the court record, the patient's medical record, the affidavits and recommendations of the medical director, and the advice of staff and physicians or the psychiatric and mental health nurse practitioner familiar with the treatment of the patient, may enter an order amending its original order. The amended order may alter the outpatient treatment plan or order the patient to inpatient treatment pursuant to subsection A, paragraph 3 of this section. The amended order shall not increase the total period of commitment originally ordered by the court or, when added to the period of inpatient treatment provided by the original order and any other amended orders, exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F of this section. If the patient refuses to comply with an amended order for inpatient treatment, the court may authorize and direct a peace officer, on the request of the medical director, to take the patient into protective custody and transport the patient to the agency for inpatient treatment. When reporting to or being returned to a treatment agency for inpatient treatment pursuant to an amended order, the patient shall be informed of the patient's right to judicial review and the patient's right to consult with counsel pursuant to section 36‑546.

5. During any period of outpatient treatment under subsection A, paragraph 2 of this section, if the medical director of the outpatient treatment facility in charge of the patient's care determines, in concert with the medical director of an inpatient mental health treatment facility who has agreed to accept the patient, that the patient is in need of immediate acute inpatient psychiatric care because of behavior that is dangerous to self or to others, the medical director of the outpatient treatment facility may order a peace officer to apprehend and transport the patient to the inpatient treatment facility pending a court determination on an amended order under paragraph 4 of this subsection. The patient may be detained and treated at the inpatient treatment facility for a period of no more than forty‑eight hours, exclusive of weekends and holidays, from the time that the patient is taken to the inpatient treatment facility. The medical director of the outpatient treatment facility shall file the motion for an amended court order requesting inpatient treatment no later than the next working day following the patient being taken to the inpatient treatment facility. Any period of detention within the inpatient treatment facility pending issuance of an amended order shall not increase the total period of commitment originally ordered by the court or, when added to the period of inpatient treatment provided by the original order and any other amended orders, exceed the maximum period allowed for an order for inpatient treatment pursuant to subsection F of this section. If a patient is ordered to undergo inpatient treatment pursuant to an amended order, the medical director of the outpatient treatment facility shall inform the patient of the patient's right to judicial review and to consult with an attorney pursuant to section 36‑546.

F. The maximum periods of inpatient treatment that the court may order, subject to the limitations of section 36‑541, are as follows:

1. Ninety days for a person found to be a danger to self.

2. One hundred eighty days for a person found to be a danger to others.

3. One hundred eighty days for a person found to have a persistent or acute disability.

4. Three hundred sixty‑five days for a person found to have a grave disability.

G. If, on finding that the patient meets the criteria for court‑ordered treatment pursuant to subsection A of this section, the court also finds that there is reasonable cause to believe that the patient is an incapacitated person as defined in section 14‑5101 or is a person in need of protection pursuant to section 14‑5401 and that the patient is or may be in need of guardianship or conservatorship, or both, the court may order an investigation concerning the need for a guardian or conservator, or both, and may appoint a suitable person or agency to conduct the investigation. The appointee may include a court appointed guardian ad litem, an investigator appointed pursuant to section 14‑5308 or the public fiduciary if there is no person willing and qualified to act in that capacity. The court shall give notice of the appointment to the appointee within three days of the appointment. The appointee shall submit the report of the investigation to the court within twenty‑one days. The report shall include recommendations as to who should be guardian or who should be conservator, or both, and a report of the findings and reasons for the recommendation. If the investigation and report so indicate, the court shall order the appropriate person to submit a petition to become the guardian or conservator, or both, of the patient.

H. In any proceeding for court‑ordered treatment in which the petition alleges that the patient is in need of a guardian or conservator and states the grounds for that allegation, the court may appoint an emergency temporary guardian or conservator, or both, for a specific purpose or purposes identified in its order and for a specific period of time not to exceed thirty days if the court finds that all of the following are true:

1. The patient meets the criteria for court-ordered treatment pursuant to subsection A of this section.

2. There is reasonable cause to believe that the patient is an incapacitated person as defined in section 14‑5101 or is in need of protection pursuant to section 14‑5401, paragraph 2.

3. The patient does not have a guardian or conservator and the welfare of the patient requires immediate action to protect the patient or the ward's property.

4. The conditions prescribed pursuant to section 14‑5310, subsection B or section 14‑5401.01, subsection B have been met.

I. The court may appoint as a temporary guardian or conservator pursuant to subsection H of this section a suitable person or the public fiduciary if there is no person qualified and willing to act in that capacity. The court shall issue an order for an investigation as prescribed pursuant to subsection G of this section and, unless the patient is represented by independent counsel, the court shall appoint an attorney to represent the patient in further proceedings regarding the appointment of a guardian or conservator. The court shall schedule a further hearing within fourteen days on the appropriate court calendar of a court that has authority over guardianship or conservatorship matters pursuant to this title to consider the continued need for an emergency temporary guardian or conservator and the appropriateness of the temporary guardian or conservator appointed, and shall order the appointed guardian or conservator to give notice to persons entitled to notice pursuant to section 14‑5309, subsection A or section 14‑5405, subsection A. The court shall authorize certified letters of temporary emergency guardianship or conservatorship to be issued on presentation of a copy of the court's order. If a temporary emergency conservator other than the public fiduciary is appointed pursuant to this subsection, the court shall order that the use of the money and property of the patient by the conservator is restricted and not to be sold, used, transferred or encumbered, except that the court may authorize the conservator to use money or property of the patient specifically identified as needed to pay an expense to provide for the care, treatment or welfare of the patient pending further hearing. This subsection and subsection H of this section do not:

1. Prevent the evaluation or treatment agency from seeking guardianship and conservatorship in any other manner allowed by law at any time during the period of court‑ordered evaluation and treatment.

2. Relieve the evaluation or treatment agency from its obligations concerning the suspected abuse of a vulnerable adult pursuant to title 46, chapter 4.

J. If, on finding that a patient meets the criteria for court‑ordered treatment pursuant to subsection A of this section, the court also learns that the patient has a guardian appointed under title 14, the court with notice may impose on the existing guardian additional duties pursuant to section 14‑5312.01. If the court imposes additional duties on an existing guardian as prescribed in this subsection, the court may determine that the patient needs to continue treatment under a court order for treatment and may issue the order or determine that the patient's needs can be adequately met by the guardian with the additional duties pursuant to section 14‑5312.01 and decline to issue the court order for treatment. If at any time after the issuance of a court order for treatment the court finds that the patient's needs can be adequately met by the guardian with the additional duties pursuant to section 14‑5312.01 and that a court order for treatment is no longer necessary to assure compliance with necessary treatment, the court may terminate the court order for treatment. If there is a court order for treatment and a guardianship with additional mental health authority pursuant to section 14‑5312.01 existing at the same time, the treatment and placement decisions made by the treatment agency assigned by the court to supervise and administer the patient's treatment program pursuant to the court order for treatment are controlling unless the court orders otherwise.

K. The court shall file a report as part of the court record on its findings of alternatives for treatment.

L. Treatment shall not include psychosurgery, lobotomy or any other brain surgery without specific informed consent of the patient or the patient's legal guardian and an order of the superior court in the county in which the treatment is proposed, approving with specificity the use of the treatment.

M. The medical director or any person, agency or organization used by the medical director to supervise the terms of an outpatient treatment plan is not civilly liable for any acts committed by a patient while on outpatient treatment if the medical director, person, agency or organization has in good faith followed the requirements of this section.

N. A peace officer who in good faith apprehends and transports a patient to an inpatient treatment facility on the order of the medical director of the outpatient treatment facility pursuant to subsection E, paragraph 5 of this section is not subject to civil liability.

O. If a person has been found, as a result of a mental disorder, to constitute a danger to self or others or to have a persistent or acute disability or a grave disability and the court enters an order for treatment pursuant to subsection A of this section, the court shall transmit the person's name, sex, date of birth, social security number, if available, and driver license or nonoperating identification license number, if available and the date of the order for treatment to the supreme court and the motor vehicle division in the department of transportation. The supreme court shall transmit the information to the department of public safety to comply with the requirements of title 13, chapter 31 and title 32, chapter 26. The department of public safety shall transmit the information to the national instant criminal background check system. The superior court may access the information of a person who is ordered into treatment to enforce or facilitate a treatment order.

P. On request, the clerk of the court shall provide certified copies of the commitment order to a law enforcement or prosecuting agency that is investigating or prosecuting a prohibited possessor as defined in section 13‑3101. END_STATUTE

Sec. 6. Effective date

Section 13-611, Arizona Revised Statutes, as added by this act, and sections 13-609, 13-925, 14-5304 and 36-540, Arizona Revised Statutes, as amended by this act, are effective from and after December 31, 2018.