This section sets the procedure for a committed defendant to seek conditional release to a less restrictive alternative, including notice, a hearing within 45 days, and proof requirements.
36-4004 - Petition for conditional release; procedures 36-4004. Petition for conditional release; procedures 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 conditionally released to a less restrictive alternative, the medical director shall allow the committed defendant to petition the court for conditional release to a less restrictive alternative. 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 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 committed defendant will not be substantially prejudiced. Either party may request that the committed defendant be examined by the party's own competent professional. B. 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 conditionally released to a less restrictive alternative or conditionally released. C. This section does not prohibit the committed defendant from annually petitioning the court for conditional release to a less restrictive alternative without the approval of medical director. The medical director shall provide an annual written notice to the committed defendant of the committed defendant's right to petition the court for conditional release to a less restrictive alternative without the approval of the medical director. The notice must contain a waiver of rights. The medical director shall submit the notice and waiver to the court with the annual examination report. D. The committed defendant may be present at the hearing. 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 conditionally released to a less restrictive alternative. If the state does not meet its burden of proof, the committed defendant shall be discharged from treatment. E. At the conclusion of a hearing, if the court finds that there is no legally sufficient evidentiary basis to conclude that the conditions prescribed in section 36-4006 have been met, the court shall deny conditional release to a less restrictive alternative.