Hawaii Revised Statutes
704. Penal Responsibility and Fitness to Proceed
704-421 Proceedings for defendants charged with petty misdemeanors not involving violence or attempted violence; criminal justice diversion program.

§704-421 Proceedings for defendants charged with petty misdemeanors not involving violence or attempted violence; criminal justice diversion program. (1) In cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence, if, at the hearing held pursuant to section 704-404(2)(a) or at a further hearing held after the appointment of an examiner pursuant to section 704-404(2)(b), the court determines that the defendant is fit to proceed, then the proceedings against the defendant shall resume. In all other cases where fitness remains an outstanding issue, the court shall continue the suspension of the proceedings and commit the defendant to the custody of the director of health to be placed in a hospital or other suitable facility for further examination and assessment.
(2) Within seven days from the commitment of the defendant to the custody of the director of health, or as soon thereafter as is practicable, the director of health shall report to the court on the defendant's current capacity to understand the proceedings against defendant and defendant's current ability to assist in defendant's own defense. If, following the report, the court finds defendant fit to proceed, the proceedings against defendant shall resume. In all other cases, the court shall dismiss the charge with or without prejudice in the interest of justice. The director of health may at any time proceed under the provisions of section 334-60.2 or 334-121. [L 2020, c 26, §1]
COMMENTARY ON §704-421
Act 26, Session Laws 2020, established this section to require that, in cases where the defendant is charged with a petty misdemeanor not involving violence or attempted violence and the defendant's fitness to proceed remains an outstanding issue: (1) the court continue the suspension of the proceedings and commit the defendant to the custody of the director of health to be placed in a hospital or other suitable facility for further examination and assessment; and (2) if the court determines that the defendant is not fit to proceed following receipt of the director of health's report on the defendant's current capacity, the court shall dismiss the charge with or without prejudice in the interest of justice. The legislature noted significant increases in the number of individuals with mental illness that were arrested and remained in custody while awaiting a psychiatric evaluation of competency. If determined to be legally unfit to proceed with their cases, these individuals continued to remain in custody until restoration of their legal fitness to proceed. The legislature found that the mental health core steering committee, a collaboration of the department of health and the judiciary, published a Joint Report on January 9, 2020, proposing legislation to divert nonviolent petty misdemeanants living with mental illness from the criminal justice system within days of their arrest, rather than months, to further the goal of crime prevention, ensure appropriate diversion to community treatment, and further the goal of rehabilitation, among other amendments to existing statute. The legislature further found that Act 26 reflected the recommendations of the steering committee to achieve a more efficient and just response in the treatment of individuals with mental disorders within the criminal justice system. Senate Standing Committee Report No. 3757.

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