35

1 unable to make a rational decision about accepting assist2 ance. The court shall make any determination pursuant to 3 this subsection, and shall impose any order of commitment, 4 within five days after the filing of the petition, and the person 5 who is the subject of the petition may be detained during 6 that five-day period regardless of any time limit for detention 7 imposed by section 402 (a) (1) or 402 (b) (1).

8

(b) The hearing shall be conducted according to the 9 provisions of subsections 404 (c) through (f) of this Act. (c) As soon as a patient so committed is once again

10

11 able to make a rational decision about accepting assistance, 12 he shall be civilly committed for treatment pursuant to sec13 tion 405, or detained for pretrial treatment pursuant to sec14 tion 404, or be handled as in any other criminal case.

15

16

PRETRIAL DETENTION FOR TREATMENT

SEC. 404. (a) A court shall hold a civil hearing without 17 a jury to consider the commitment of a person for treatment 18 prior to trial upon a petition filed by a Government attorney 19 alleging that the person

20

21

22

2 2 2 2 2

25

23

(1) has been diagnosed as a drug dependent per

son, and

(2) is charged with a felony under Federal law

that is (A) a drug related felony, and (B) not an

24 offense under the Controlled Dangerous Substances Act

25

of 1969.

36

1

(b) The court may order commitment of the person

2 to the Secretary for treatment and care for drug dependence

3 for a period not to exceed sixty days if it determines that(1) there is clear and convincing evidence that the person is a drug dependent person and that the

4

5

6

7

8

9

offense charged is a drug related felony, and

(2) appropriate treatment for drug dependence is available for him.

(c) Such hearing shall be held within four days after 10 the filing of the petition, unless the person or his attorney 11 requests a delay of the hearing. The court shall notify the

12

person and his attorney of the time and place of the hearing. 13 If the person is without funds to provide for the assistance 14 of counsel for the hearing, the court shall appoint counsel to 15 represent the person at the expense of the Government.

16

(d) In conducting a hearing under this section, the court 17 shall receive and consider all relevant evidence and testimony 18 which may be offered. The person shall have the right to 19 present evidence, and to present and cross-examine witnesses. 20 The testimony of the person at this hearing may not be used 21 against him in any other judicial proceeding, nor shall the 22 person waive his privilege against self-incrimination in any 23 future judicial proceeding by testifying at this hearing. The 24 court shall make any determination pursuant to this sub

37

1 section, and shall impose any order of commitment, within 2 forty-eight hours after the conclusion of the hearing.

3 (e) Any person committed shall have the right to 4 appeal: Provided, That any appeal arising pursuant to this 5 subsection shall be disposed of within ten days of the entry 6 of the order appealed from.

7 (f) Any court which conducts the hearing provided 8 for in this section, or which reviews the outcome of said 9 hearing, shall not sit in any trial of the person for an offense 10 which was the basis for or pending at the time of said 11 hearing, or any related appeal.

12 (g) Any person committed shall have his case placed

13

on an expedited trial calendar, and the handling of motions 14 and other preliminary matters pertaining to the case shall 15 also be expedited. Continuances shall be granted only upon

16

a showing of compelling circumstances. A continuance 17 granted upon motion of the defense shall extend commitment 18 to custody ordered pursuant to this section for the additional 19 period of such continuance. If the trial of the person has 20 begun but not been completed before the expiration, after 21 the order of commitment to custody, of sixty days plus the 22 period of any such continuance, the person shall remain 23 subject to the commitment order until the conclusion of the

24 trial.

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(h) Any hearing under the provisions of this section 2 shall be taken down by a court reporter or recorded by suit3 able sound recording equipment. A transcript of the record 4 of such hearing shall be made available, at the expense of 5 the Government, to a person who was the subject of the hear6 ing and who makes affidavit that he is unable to pay or give 7 security therefor.

8 (i) No person committed shall be denied the right to 9 communicate with counsel or any other person at any rea10 sonable time. Upon the application of counsel on behalf of 11 any such person in custody, a court shall order for a strictly 12 limited and necessary period of time, the release of such person in the custody of and at all times to be accompanied 14 by a designated Federal officer, if the court determines that, 15 notwithstanding the rights secured by this section, the person 16 cannot otherwise prepare his defense.

13

17 (j) Any person committed pursuant to this section shall 18 initially be placed in inpatient treatment unless the court 19 orders otherwise. The Secretary may transfer a committed 20 person between inpatient, intermediate care, and outpatient 21 services without court permission on the basis of sound clini22 cal judgment, except that a court order must be obtained for 23 the transfer from inpatient status. A committed person has a 24 right to intermediate care and outpatient status as quickly as

39

1 is consistent with sound clinical judgment and with the safety

2 of other persons and of property.

CIVIL COMMITMENT FOR TREATMENT OF DRUG

3

4

DEPENDENCE

5

SEC. 405. (a) (1) The courts may commit to the Sec

6

retary for treatment and care for drug dependence in lieu

7 of criminal prosecution or punishment for up to a specified

period of time a drug dependent person who—

(A) is charged with a misdemeanor and who, prior to trial on the offense, requests such treatment in lieu of criminal prosecution; or

(B) is charged with a misdemeanor or felony and who, after having pled nolo contendere or guilty to, or having been found guilty of, the offense charged, at the time sentence is imposed requests such treatment in lieu

of serving the sentence imposed; or

(C) is serving a criminal sentence and petitions the court for such treatment in lieu of serving the remainder

of his sentence.

(2) No term of commitment shall be ordered for a period longer than the maximum sentence that could have been im

posed for the offense with which the person was charged with

respect to subsection (a) (1) (A), or for a period longer than

the sentence actually imposed with respect to subsections (a)