Key Information

Relevant Statutes and Rules

Haw. Rev. Stat. Ann. § 704-403 to 704-421

Haw. Admin Rules § 11-175-68

What proceedings can occur while the defendant is incompetent

If defendant's counsel "has reasonable grounds for a good faith belief that counsel's client has an objection based on legal grounds to the charge," counsel may apply for a hearing. § 704-407(1). "After the hearing, the court shall rule on any legal objection raised by the application and, in an appropriate case, may quash the indictment or other charge, find it to be defective or insufficient, or otherwise terminate the proceedings on the law." HRS § 704-407(1)-(3).

Number of examiners required

1 for misdemeanors
3 for felonies

 § 704-404(2)

Qualifications of examiners

Misdemeanor: Psychiatrist or licensed psychologist from within dep't of health. HRS  § 704-404(2)(b)

Felony: Psychiatrist, licensed psychologist, or qualified physician (as long as one of three examiners is psychiatrist/licensed psychologist from within dep't of health). HRS  § 704-404(2)(c)

"All examiners shall be appointed from a list of certified examiners as determined by the department of health." HRS  § 704-404(2)

What must the evaluation report contain

Except for D's charged with petty misdemeanors not involving violence or attempted violence and examined by a court-based certified examiner, the reports shall include:
"(a) A description of the nature of the examination;
(b) A diagnosis of the physical or mental condition of the defendant;
(c) An opinion as to the defendant's capacity to understand the proceedings against the defendant and to assist in the defendant's own defense;
(d) An assessment of the risk of danger to the defendant or to the person or property of others for consideration and determination of the defendant's release on conditions; and
(e) Where more than one examiner is appointed, a statement that the opinion rendered was arrived at independently of any other examiner, unless there is a showing to the court of a clear need for communication between or among the examiners for clarification. A description of the communication shall be included in the report. After all reports are submitted to the court, examiners may confer without restriction."

HRS § 704-404(5).

"If the examination cannot be conducted by reason of the unwillingness of the defendant to participate in the examination, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of physical or mental disease, disorder, or defect." HRS § 704-404(6)

Are low-level offenses excluded from restoration

If the court finds after the competency hearing that a defendant "charged with a petty misdemeanor not involving violence or attempted violence" is unfit, it shall commit the defendant to the director of health for further examination and assessment. Within 14 days of D being committed, the director shall report to the criminal court on D's fitness, whether D meets the criteria for involuntary hospitalization or assisted community treatment, and the date that the director filed a petition for same. Following receipt of that report, the criminal court shall determine whether the D remains unfit.  If he is fit, proceedings resume. If not, "the court shall dismiss the charge with or without prejudice in the interest of justice."

If during the 704-421 assessment mentioned above the clinical team determines that D meets the criteria for involuntary hospitalization, it must file a petition for same within 7 days.  If that petition is granted, D will be hospitalized. If that petition is denied or if the clinical team determines that D does not meet the criteria for hospitalization, then the team must assess whether an assisted community treatment plan is appropriate.  If it determines that such plan is appropriate, then the director shall file a petition for said treatment in family court within 10 days of making the determination. Haw. St. 704-421.

Is there a pathway for diversion following a finding of incompetence to stand trial

Possible diversion to assisted community treatment for defendants accused of a petty misdemeanor not involving violence or attempted violence. Haw. St. 704-421.

What are the locations for restoration services

Inpatient, but may be outpatient if the court is "satisfied that the defendant may be released on conditions without danger to the defendant or to another or risk of substantial danger to property of others." § 704-406(1).

What is the test for restorability

"probably will remain unfit to proceed." § 704-406(7).

What is the procedure after restoration

"When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, has reason to believe that the defendant has regained fitness to proceed, for a defendant charged with the offense of murder in the first or second degree, attempted murder in the first or second degree, or a class A felony, the court shall appoint three qualified examiners and may appoint in all other cases one qualified examiner, to examine and report upon the physical and mental condition of the defendant.  Upon request, it then holds a hearing, and if it finds that D is restored, proceedings shall resume unless the court deems it would be unjust because too much time has passed." HRS § 704-406(3)

What is the procedure if there is a finding of unrestorability

The court may dismiss the charge and:
(a) Release the defendant; or
(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment.

§ 704-406(7), (8)

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

If either 120 days for misdemeanors not involving violence expires OR the court is of the view that so much time has elapsed since the commitment or release on conditions of the defendant that it would be unjust to resume the proceeding, the court may dismiss the charge and:
(a) Order the defendant to be discharged;
(b) Subject to section 334-60.2 regarding involuntary hospitalization criteria, order the defendant to be committed to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment; or
(c) Subject to section 334-121 regarding assisted community treatment criteria, order the defendant to be released on conditions the court determines necessary (Section c does not apply to defendants accused of misdemeanors not involving violence). § 704-406(3) (7).

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

"for any defendant not subject to an order of commitment to the director of health for the purpose of the examination, neither the right to bail nor proceedings pursuant to chapter 804  [the bail chapter] shall be suspended." HRS § 704-404(1) 

Time limits on treatment

Misdemeanor not involving violence: 120 days from date court finds defendant unfit to proceed. § 704-406(1).

No explicit time limits for other categories of defendants.