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1994 SESSION

LD3364112
HOUSE BILL NO. 649
Offered January 25, 1994
A BILL to amend and reenact §§ 37.1-67.3 and 37.1-129 of the Code of Virginia and to amend the Code of Virginia by adding sections numbered 18.2-308.1:2 and 18.2-308.2:3, relating to firearms; incompetence; penalty.
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Patrons--Almand, Albo, Connally, Copeland, Dillard, Hamilton, Hull, McDonnell, Mims, Plum and Scott; Senators: Andrews, Calhoun, Holland, E.M., Howell and Woods
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That §§ 37.1-67.3 and 37.1-129 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 18.2-308.1:2 and 18.2-308.2:3 as follows:

§ 18.2-308.1:2. Purchase, possession or transportation of firearm by persons adjudicated legally incompetent; penalty.

A. It shall be unlawful for any person who has been adjudicated legally incompetent as defined in § 37.1-128.01 or found to be incapacitated and who has not obtained a permit as provided in subsection C to purchase, possess, or transport any firearm. A violation of this subsection shall be punishable as a Class 1 misdemeanor.

B. Any firearm possessed or transported in violation of this section shall be forfeited to the Commonwealth and disposed of as provided in § 18.2-310.

C. Any person whose competence or capacity has been restored pursuant to § 37.1-134.1 may petition the circuit court in the county or city in which he resides for a permit to possess or carry a firearm. The court may, in its discretion and for good cause shown, grant the petition and issue a permit.

§ 18.2-308.2:3. Unlawful for person who has been involuntarily treated at a mental hospital to have firearm; penalty.

A. It shall be unlawful for any person who has been involuntarily committed pursuant to § 37.1-67.3 and who has not obtained a permit from a court as provided in subsection C to purchase, possess or transport a firearm. A violation of this subsection shall be punishable as a Class 1 misdemeanor.

B. Any firearm possessed or transported in violation of this section shall be forfeited to the Commonwealth and disposed of as provided in § 18.2-310.

C. Any person prohibited from purchasing, possessing or transporting a firearm under this section, and who has for one year following discharge behaved in a manner that neither violates the law nor poses a threat to himself or others, may petition the circuit court in the county or city in which he resides for a permit to purchase, possess or transport a firearm. The court may, in its discretion and for good cause shown, grant the petition and issue a permit upon finding that, for one year following discharge, the person has not behaved in a manner that either violates the law or poses a threat to himself or others.

§ 37.1-67.3. Same; involuntary admission and treatment.

If a person is incapable of accepting or unwilling to accept voluntary admission and treatment, the judge shall inform such person of his right to a commitment hearing and right to counsel. The judge shall ascertain if a person whose admission is sought is represented by counsel, and if he is not represented by counsel, the judge shall appoint an attorney-at-law to represent him. However, if such person requests an opportunity to employ counsel, the court shall give him a reasonable opportunity to employ counsel at his own expense. The commitment hearing shall be held within forty-eight hours of the execution of the detention order as provided for in § 37.1-67.1; however, if the forty-eight-hour period herein specified terminates on a Saturday, Sunday or a legal holiday, such person may be detained, as herein provided, until the next day which is not a Saturday, Sunday or legal holiday, but in no event may he be detained for a period longer than seventy-two hours or ninety-six hours when such legal holiday occurs on a Monday or Friday. A Saturday, Sunday, or legal holiday shall be deemed to include the time period up to 8:00 a.m. of the next day which is not a Saturday, Sunday, or legal holiday. Prior to such hearing, the judge shall fully inform such person of the basis for his detention, the standard upon which he may be detained, the right of appeal from such hearing to the circuit court, the right to jury trial on appeal, and the place, date, and time of such hearing.

If such person is incapable of accepting or unwilling to accept voluntary admission and treatment as provided for in § 37.1-67.2, a commitment hearing shall be scheduled as soon as possible, allowing the person who is the subject of the hearing an opportunity to prepare any defenses which he may have, obtain independent evaluation and expert opinion at his own expense, and summons other witnesses.

To the extent possible, during the commitment hearing, the attorney for the person whose admission is sought shall interview his client, the petitioner, the examiner described below, and any other material witnesses. He shall also examine all relevant diagnostic and other reports, present evidence and witnesses, if any, on his client's behalf, and otherwise actively represent his client in the proceedings.

The petitioner shall be given adequate notice of the place, date, and time of the commitment hearing. The petitioner shall be entitled to retain counsel at his own expense, to be present during the hearing, and to testify and present evidence.

Notwithstanding the above, the judge shall require an examination of such person by a psychiatrist who is licensed in Virginia or a clinical psychologist who is licensed in Virginia or, if such a psychiatrist or clinical psychologist is not available, a physician or psychologist who is licensed in Virginia and who is qualified in the diagnosis of mental illness. All such examinations shall be conducted in private. The judge shall summons the examiner who shall certify that he has personally examined the individual and has probable cause to believe that he is or is not mentally ill, that such person does or does not present an imminent danger to himself or others, and requires or does not require involuntary hospitalization. The judge, in his discretion, may accept written certification of the examiner's findings if the examination has been personally made within the preceding five days and if there is no objection to the acceptance of such written certification by the person or his attorney. The judge shall not render any decision on the petition until such examiner has presented his report either orally or in writing.

Except as otherwise provided in this section, prior to making any adjudication that such person is mentally ill and shall be confined to an institution pursuant to this section, the judge shall request from the community services board which serves the political subdivision where the person resides a prescreening report, and the board or clinic shall provide such a report within forty-eight hours or within seventy-two hours if the forty-eight-hour period terminates on a Saturday, Sunday or legal holiday. The report shall state whether the person is deemed to be mentally ill, an imminent danger to himself or others and in need of involuntary hospitalization, whether there is no less restrictive alternative to institutional confinement and what the recommendations are for that person's care and treatment. If the prescreening report is not received by the judge within the specified period, the judge shall proceed to dispose of the case without the board's or clinic's recommendation. In the case of a person sentenced and committed to the Department of Corrections and who has been examined by a psychiatrist or clinical psychologist, the judge may proceed to adjudicate whether the person is mentally ill and should be confined pursuant to this section without requesting a prescreening report from the community services board.

After observing the person and obtaining the necessary positive certification and other relevant evidence, if the judge finds specifically that the person (i) presents an imminent danger to himself or others as a result of mental illness, or (ii) has been proven to be so seriously mentally ill as to be substantially unable to care for himself, and (iii) that alternatives to involuntary confinement and treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to institutional confinement and treatment, the judge shall by written order and specific findings so certify and order that the person be placed in a hospital or other facility for a period of treatment not to exceed 180 days from the date of the court order. Such placement shall be in a hospital or other facility designated by the community services board which serves the political subdivision in which the person was examined as provided in this section. If the community services board does not provide a placement recommendation at the commitment hearing, the person shall be placed in a hospital or other facility designated by the Commissioner.

After observing the person and obtaining the necessary positive certification and other relevant evidence, if the judge finds specifically that the person (i) presents an imminent danger to himself or others as a result of mental illness, or (ii) has been proven to be so seriously mentally ill as to be substantially unable to care for himself, and (iii) that less restrictive alternatives to institutional confinement and treatment have been investigated and are deemed suitable, the judge shall order outpatient treatment, day treatment in a hospital, night treatment in a hospital, outpatient involuntary treatment with anti-psychotic medication pursuant to § 37.1-134.5, or such other appropriate course of treatment as may be necessary to meet the needs of the individual. Upon failure of the patient to adhere to the terms of the outpatient treatment, the judge may revoke the same and, upon notice to the patient and after a commitment hearing, order involuntary commitment for treatment at a hospital. The community services board which serves the political subdivision in which the person resides shall recommend a specific course of treatment and programs for provision of such treatment. The community services board shall monitor the person's compliance with such treatment as may be ordered by the court under this section, and the person's failure to comply with involuntary outpatient treatment as ordered by the court may be admitted into evidence in subsequent hearings held pursuant to § 37.1-67.2 or this section.

The judge shall also order that the relevant medical records of such person be released to the facility or program in which he is placed upon request of the treating physician or director of the facility or program. Except as provided in this section, the relevant medical records, reports, and court documents pertaining to the hearings provided for in this section and § 37.1-67.2 shall be kept confidential by the court if so requested by such person, or his counsel, with access provided only upon court order for good cause shown. Such records, reports, and documents shall not be subject to the Virginia Freedom of Information Act (§ 2.1-340 et seq.). Such person shall be released at the expiration of 180 days unless involuntarily committed by further petition and order of a court as provided herein or such person makes application for treatment on a voluntary basis as provided for in § 37.1-65.

Any person committed pursuant to this section for whom a subsequent commitment order is being sought prior to the expiration of the 180-day commitment period shall not be entitled to a separate preliminary hearing prior to such commitment hearing. The clerk shall certify to the Central Criminal Records Exchange, on forms provided by the Exchange, a copy of any order for involuntary commitment to a hospital for purposes relating to the firearms transaction record check authorized by § 18.2-308.2:2. The copy of the order shall be kept confidential in a separate file to be used only for the purpose of conducting the firearms record check. This information shall be kept confidential and used only for purposes of such record check.

The procedures required by § 37.1-67.2 or by this section shall be followed at such commitment hearing. The judge shall render a decision on such petition after the appointed examiner has presented his report, either orally or in writing, and after the community services board which serves the political subdivision where the person resides has presented a prescreening report, either orally or in writing, with recommendations for that person's placement, care and treatment.

§ 37.1-129. Clerk to index findings of legal incompetency or restoration of competency; notice to Commissioner, Secretary of Board of Elections and CCRE.

A. A copy of the findings of the court, if the person be is found to be legally incompetent, or restored to competency, shall be filed by the judge with the clerk of the court of the county or city in which deeds are admitted to record. The clerk shall properly index the same in the index to deed books by reference to the order book and page whereon such order is spread and shall immediately notify the Commissioner in accordance with § 37.1-147, and the Secretary of the State Board of Elections with such information as required by § 24.2-410 of this Code.

B. The clerk shall forward to the Central Criminal Records Exchange, on forms provided by the Exchange for purposes of implementing § 18.2-308.2:2, an abstract of findings of incompetence under § 37.1-128.02, a specific finding of incapacity to possess a firearm under § 37.1-128.1, or a restoration of competency or capacity under § 37.1-134.1. The abstract shall include date of entry of the order and identifying information on the individual, and shall be kept confidential in a separate file to be used only for the purpose of conducting a firearms record check.