Key Information

Relevant Statutes and Rules

Ohio Rev. Code Ann. § 2945.37--2945.39

What proceedings can occur while the defendant is incompetent

Not stated.

Number of examiners required

1

Ohio Rev. Code Ann. § 2945.37(A) (West)

Qualifications of examiners

A psychiatrist or a licensed clinical psychologist who satisfies the criteria of division (I) of section 5122.01 of the Revised Code [re: licensing and education] or is employed by a certified forensic center designated by the department of mental health and addiction services to conduct examinations or evaluations.

Ohio Rev. Code Ann. § 2945.37 (West)

What must the evaluation report contain

The report shall include all of the following:
(1) The examiner's findings;
(2) The facts in reasonable detail on which the findings are based;
(3) If the evaluation was ordered to determine the defendant's competence to stand trial, all of the following findings or recommendations that are applicable:
(a) Whether the defendant is capable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense;
(b) If the examiner's opinion is that the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, whether the defendant presently is mentally ill or has an intellectual disability and, if the examiner's opinion is that the defendant presently has an intellectual disability, whether the defendant appears to be a person with an intellectual disability subject to institutionalization by court order;
(c) If the examiner's opinion is that the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the examiner's opinion as to the likelihood of the defendant becoming capable of understanding the nature and objective of the proceedings against the defendant and of assisting in the defendant's defense within one year if the defendant is provided with a course of treatment;
(d) If the examiner's opinion is that the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense and that the defendant presently is mentally ill or has an intellectual disability, the examiner's recommendation as to the least restrictive placement or commitment alternative, including consideration of housing needs and the availability of mental health treatment in the community, consistent with the defendant's treatment needs for restoration to competency and with the safety of the community.

Ohio Rev. Code Ann. § 2945.371(H) (West)

Are low-level offenses excluded from restoration

"If the defendant has not been charged with a felony offense or a misdemeanor offense of violence, or if the defendant has been charged with a misdemeanor offense of violence and the prosecutor has recommended the procedures under division (B)(1)(a)(vi) of this section, the trial court [may] . . . dismiss the charges pending against the defendant [without prejudice]."

Ohio Rev. Code Ann. § 2945.38(B)(1)(a)(v) (West)

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

None stated.

What are the locations for restoration services

If misdemeanor other than crime of violence, outpatient "at a facility operated or certified by the department of mental health and addiction services as being qualified to treat mental illness, at a public or community mental health facility, at a jail that employs or contracts with an individual or entity listed in division (B)(1)(b)(i) of this section to provide treatment or continuing evaluation and treatment at a jail, or in the care of a psychiatrist or other mental health professional."

Ohio Rev. Code Ann. § 2945.38(B)(1)(a)(v)(II) (West)

"In determining the place of commitment, the court shall consider the extent to which the person is a danger to the person and to others, the need for security, the availability of housing and supportive services, including outpatient mental health services in the community, and the type of crime involved and shall order the least restrictive alternative available that is consistent with public safety and treatment goals. In weighing these factors, the court shall give preference to protecting public safety and the availability of housing and supportive services."

Ohio Rev. Code Ann. § 2945.38(B)(1)(b)(iii) (West)

What is the test for restorability

"substantial probability that the defendant will become competent to stand trial within one year of treatment" or maximum time for treatment.

Ohio Rev. Code Ann. § 2945.38(B) (West)

What is the procedure after restoration

"within thirty days after being advised by the treating physician or examiner that the defendant is competent to stand trial, the court shall conduct another hearing to determine if the defendant is competent to stand trial and shall do whichever of the following is applicable:
If the court finds that the defendant is competent to stand trial, the defendant shall be proceeded against as provided by law."

Ohio Rev. Code Ann. § 2945.38 (West)

"If the court finds the defendant competent to stand trial and the defendant is receiving psychotropic drugs or other medication, the court may authorize the continued administration of the drugs or medication or other appropriate treatment in order to maintain the defendant's competence to stand trial, unless the defendant's attending physician advises the court against continuation of the drugs, other medication, or treatment."

Ohio Rev. Code Ann. § 2945.38(A) (West)

What is the procedure if there is a finding of unrestorability

"[T]he court shall order the discharge of the defendant, unless upon motion of the prosecutor or on its own motion, the court either seeks to retain jurisdiction over the defendant pursuant to section 2945.39 of the Revised Code or files an affidavit in the probate court for the civil commitment  of defendant. . . .
The trial court may issue the temporary order of detention that a probate court may issue under section 5122.11 or 5123.71 of the Revised Code, to remain in effect until the probable cause or initial hearing in the probate court."

Ohio Rev. Code Ann. § 2945.38 (West)

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 anything other than the most serious felony, court shall dismiss the charges without prejudice. The court shall discharge the defendant unless the court or prosecutor files an affidavit in probate court for civil commitment  . . . . If an affidavit for civil commitment is filed, the court may detain the defendant for ten days pending civil commitment.

Ohio Rev. Code Ann. § 2945.38(H)(4) (West)

If most serious felony, either:

(1) The court or the prosecutor may file an affidavit in probate court for civil commitment . . . . If the court or prosecutor files an affidavit for civil commitment, the court may detain the defendant for ten days pending civil commitment.

(2) the court may retain jurisdiction over the defendant if, at a hearing, the court finds both of the following by clear and convincing evidence:
(a) The defendant committed the offense with which the defendant is charged.
(b) The defendant is a person with a mental illness subject to court order or a person with an intellectual disability subject to institutionalization by court order.

Ohio Rev. Code Ann. § 2945.39 (West)
Ohio Rev. Code Ann. § 2945.39 (West)

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

Not stated.

Time limits on treatment

1 year (for most serious felonies);
6 mos. (for lesser felonies);
60 days (for misdemeanor of first or second degree);
30 days (for misdemeanors in third or fourth degree)

Ohio Rev. Code Ann. § 2945.38(C) (West)