36-4009. Petition for discharge; procedures; annual report

A. If the medical director determines that the committed defendant's mental illness, defect or disability has so changed that the committed defendant is no longer dangerous if discharged but remains incompetent to stand trial, the medical director shall allow the committed defendant to petition the court for discharge. The committed defendant shall serve the petition on the court and the attorney for the state. The court shall hold a hearing on the petition for discharge within forty-five days after receiving the petition.

B. The committed defendant may be present at the discharge hearing. 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 committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional. The attorney for the state has the burden of proving by clear and convincing evidence that the committed defendant's mental illness, defect or disability has not changed and that the committed defendant remains dangerous. If the state does not meet its burden of proof, the committed defendant shall be discharged from treatment.

C. This section does not prohibit the committed defendant from annually petitioning the court for discharge without the approval of the medical director. The medical director shall give annual written notice to the committed defendant of the committed defendant's right to petition the court for discharge without the approval of the medical director and provide a copy of that written notice to the committed defendant in connection with proceedings under this article.  The notice shall contain a waiver of rights. The medical director shall submit the notice and waiver to the court with the annual examination report.

D. The medical director of each secure state mental health facility shall annually report the following information for the previous year to the Arizona criminal justice commission:

1. The number of committed defendants who are under the jurisdiction of the medical director because the individual is dangerous, incompetent and nonrestorable.

2. The number of individuals who are committed defendants and dangerous and who are released.