36-3709

36-3709. Petition for change of status;
procedures

A. If the superintendent of the state hospital or the director of the department of
health services determines that the person's mental disorder has so changed that the
person is not likely to engage in acts of sexual violence if conditionally released to a
less restrictive alternative, the superintendent or director shall allow the person to
petition the court for conditional release to a less restrictive alternative. The person
shall serve the petition on the court and the attorney for the state. The court shall
hold a hearing on the petition for conditional release to a less restrictive alternative
within forty-five days after receiving the petition. The court may continue the hearing
on the request of either party and a showing of good cause or on its own motion if the
respondent will not be substantially prejudiced. The county attorney or the attorney
general shall represent the state at the hearing and may request that the petitioner be
examined by a competent professional selected by the county attorney or the attorney
general. The attorney for the state has the burden of proving beyond a reasonable doubt
that the petitioner's mental disorder has not changed and that the petitioner remains a
danger to others and is likely to engage in acts of sexual violence if conditionally
released to a less restrictive alternative or unconditionally discharged.

B. This section does not prohibit the committed person from annually petitioning
the court for conditional release to a less restrictive alternative without the approval
of the superintendent of the state hospital or the director of the department of health
services. The director of the department of health services shall give annual written
notice to the committed person of the person's right to petition the court for
conditional release to a less restrictive alternative without the approval of the
superintendent or director. The notice shall contain a waiver of rights. The director
shall submit the notice and waiver to the court with the annual examination report.

C. The committed person may be present at the hearing. The county attorney or the
attorney general may request that the person be examined by a competent professional
selected by the attorney for the state. The committed person may retain and the court on
request of an indigent person may appoint a competent professional. The attorney for the
state has the burden of proving beyond a reasonable doubt that the person's mental
disorder has not changed and that the person remains a danger to others and is likely to
engage in acts of sexual violence if conditionally released to a less restrictive
alternative. If the state does not meet its burden of proof, the person shall be
discharged from treatment.

D. If at the conclusion of a hearing the court finds that there is no legally
sufficient evidentiary basis to conclude that the conditions prescribed in section
36-3711 have been met, the court shall grant the state's motion for a judgment on the
issue of conditional release to a less restrictive alternative.