426.095
Commitment hearing; postponement; right to cross-examine; admissibility of
investigation report.
The following is applicable to a commitment hearing held by a court under ORS
426.070:
(1) The hearing
may be held in a hospital, the person’s home or in some other place convenient
to the court and the person alleged to have a mental illness.
(2) The court
shall hold the hearing at the time established according to the following:
(a) Except as
provided by paragraph (b) or (c) of this subsection, a hearing shall be held
five judicial days from the day a court under ORS 426.070 issues a citation
provided under ORS 426.090.
(b) Except as
provided by paragraph (c) of this subsection, if a person is detained by a
warrant of detention under ORS 426.070, a hearing shall be held within five
judicial days of the commencement of detention.
(c) If requested
under this paragraph, the court, for good cause, may postpone the hearing for
not more than five judicial days in order to allow preparation for the hearing.
The court may make orders for the care and custody of the person during a postponement
as it deems necessary. If a person is detained before a hearing under ORS
426.070, 426.180, 426.228, 426.232, 426.233 or 426.702 and the hearing is
postponed under this paragraph, the court, for good cause, may allow the person
to be detained during the postponement if the postponement is requested by the
person or the legal counsel of the person. Any of the following may request a
postponement under this paragraph:
(A) The person
alleged to have a mental illness or the person alleged to be an extremely
dangerous person with mental illness.
(B) The legal
counsel or guardian of the person.
(C) The
individual representing the state’s interest.
(3) The person
alleged to have a mental illness and the individual representing the state’s
interest shall have the right to cross-examine all the following:
(a) Witnesses.
(b) The
individual conducting the investigation.
(c) The examining
physicians or other licensed independent practitioners who have examined the
person.
(4) The
provisions of ORS 40.230, 40.235, 40.240 and 40.250 shall not apply to and the
court may consider as evidence any of the following:
(a) Medical
records for the current involuntary prehearing period of detention.
(b) Statements
attributed by the maker of the medical records or the investigation report to
witnesses concerning their own observations in the absence of objection or if
such individuals are produced as witnesses at the hearing available for
cross-examination.
(c) The testimony
of any treating licensed independent practitioners, nurses or social workers
for the prehearing period of detention. Any treating licensed independent
practitioner, nurse or social worker who is subpoenaed as a witness for the
proceeding shall testify as an expert witness under the provisions of ORS
40.410, 40.415, 40.420 and 40.425 and is subject to treatment as an expert
witness in the payment of witness fees and costs.
(d) The
investigation report prepared under ORS 426.074. Subject to the following, the
investigation report shall be introduced in evidence:
(A) Introduction
of the report under this paragraph does not require the consent of the person
alleged to have a mental illness.
(B) Upon
objection by any party to the action, the court shall exclude any part of the
investigation report that may be excluded under the Oregon Evidence Code on
grounds other than those set forth in ORS 40.230, 40.235, 40.240 or 40.250.
(C) Neither the
investigation report nor any part thereof shall be introduced into evidence
under this paragraph unless the investigator is present during the proceeding
to be cross-examined or unless the presence of the investigator is waived by
the person alleged to have a mental illness or counsel for the person. [1973
c.838 §9; 1975 c.690 §5; 1987 c.903 §13; 1993 c.484 §16; 1997 c.649 §2; 2009
c.595 §389; 2013 c.715 §§4,15; 2015 c.461 §6]
Notes of Decisions
Cited in
80
cases (
33 in the last 5 years), 1976–2026 · leading case:
State v. A. M., 553 P.3d 593 (Or. Ct. App. 2024).
State v. A. M., 553 P.3d 593 (Or. Ct. App. 2024).
· cites it 13× “establish that civil commitment hearings will comply with due process only if they strictly follow the procedures set out in ORS 426.095. It follows from those two propositions, she reasons, that due process requires in-person civil commitment hearings.”
State v. Jayne, 23 P.3d 990 (Or. Ct. App. 2001).
· cites it 6× “In her first assignment of error, appellant argues that, contrary to ORS 426.095(4)(d)(C), [1] the investigation report prepared by the precommitment investigator was admitted without the investigator being present during the hearing to be cross-examined and without appellant's…”
State v. Lott, 122 P.3d 97 (Or. Ct. App. 2005).
· cites it 4× “ORS 426.095(4)(a). Second, it also was admissible under OEC 803(4) as part of the report that was reasonably pertinent to appellant's diagnosis or treatment.”
State v. J. J. S. (In re J. J. S.), 444 P.3d 1141 (Or. Ct. App. 2019).
· cites it 8× “Appellant acknowledges that the statute authorizes the court to postpone a hearing on the motion of a party for "good cause" under ORS 426.095 (2)(c), but she argues that the statute does not authorize the court to postpone the hearing on its own motion.”
State v. L.O.W. (In re L.O.W.), 424 P.3d 789 (Or. Ct. App. 2018).
· cites it 6× “095(2)(a). In other words, the state contends that, whatever the remedy may be for violation of ORS 426.”
State v. Johansen, 866 P.2d 470 (Or. Ct. App. 1993).
· cites it 6× “*473 ORS 426.095. [7] If, after hearing all the evidence and reviewing the findings of the examiners, the court is persuaded by clear and convincing evidence that the person is mentally ill, [8] then it may order the person committed to a mental hospital for a period of time to…”
State v. J. O. B. (In re J. O. B.), 436 P.3d 91 (Or. Ct. App. 2019).
· cites it 3× “See ORS 426.095 (2)(c)(A) - (C) (person alleged to have mental illness, that person's legal counsel or guardian, or the person representing the state are allowed to request a postponement for good cause).”
O'Neill v. O'Neill, 545 P.2d 97 (Or. 1976).
“ORS 426.095 provides: "The allegedly mentally ill person shall have the right to cross-examine all witnesses, the person conduct *63 ing the investigation, the examining physicians or other qualified persons recommended by the division who have examined the persons.”
Matter of Alexander, 554 P.2d 524 (Or. Ct. App. 1976).
· cites it 2× “The failure of one of the initiating petitioners to appear may jeopardize the state's evidence. It would also preclude use by the court or the examining physicians of any of the allegations contained in the affidavit of the missing person because ORS 426.”
State v. Pieretti, 823 P.2d 426 (Or. Ct. App. 1991).
· cites it 2× “1 ORS 426.095(2) provides, in part: “(a) Except as provided by paragraph (b) or (c) of this subsection, a hearing shall be held five judicial days from the day a "court under ORS 426.”
State Ex Rel. Juv. Dep't v. Reynolds, 857 P.2d 842 (Or. 1993).
“569(l)(b) (temporary custody of child for care, placement, and supervision); ORS 426.095 (involuntary commitment to a mental health facility); ORS 426.”
— Or. Rev. Stat. § 426.095(1) — 13 cases
State v. A. M., 553 P.3d 593 (Or. Ct. App. 2024).
“establish that civil commitment hearings will comply with due process only if they strictly follow the procedures set out in ORS 426.095. It follows from those two propositions, she reasons, that due process requires in-person civil commitment hearings.”
— Or. Rev. Stat. § 426.095(2) — 10 cases
State v. Pieretti, 823 P.2d 426 (Or. Ct. App. 1991).
“1 ORS 426.095(2) provides, in part: “(a) Except as provided by paragraph (b) or (c) of this subsection, a hearing shall be held five judicial days from the day a "court under ORS 426.”
State v. J. J. S. (In re J. J. S.), 444 P.3d 1141 (Or. Ct. App. 2019).
“Appellant acknowledges that the statute authorizes the court to postpone a hearing on the motion of a party for "good cause" under ORS 426.095 (2)(c), but she argues that the statute does not authorize the court to postpone the hearing on its own motion.”
— Or. Rev. Stat. § 426.095(2)(a) — 9 cases
State v. Pieretti, 823 P.2d 426 (Or. Ct. App. 1991).
“1 ORS 426.095(2) provides, in part: “(a) Except as provided by paragraph (b) or (c) of this subsection, a hearing shall be held five judicial days from the day a "court under ORS 426.”
State v. J. O. B. (In re J. O. B.), 436 P.3d 91 (Or. Ct. App. 2019).
“See ORS 426.095 (2)(c)(A) - (C) (person alleged to have mental illness, that person's legal counsel or guardian, or the person representing the state are allowed to request a postponement for good cause).”
State v. L.O.W. (In re L.O.W.), 424 P.3d 789 (Or. Ct. App. 2018).
“095(2)(a). In other words, the state contends that, whatever the remedy may be for violation of ORS 426.”
— Or. Rev. Stat. § 426.095(2)(b) — 5 cases
— Or. Rev. Stat. § 426.095(2)(c) — 23 cases
State v. J. J. S. (In re J. J. S.), 444 P.3d 1141 (Or. Ct. App. 2019).
“Appellant acknowledges that the statute authorizes the court to postpone a hearing on the motion of a party for "good cause" under ORS 426.095 (2)(c), but she argues that the statute does not authorize the court to postpone the hearing on its own motion.”
State v. L.O.W. (In re L.O.W.), 424 P.3d 789 (Or. Ct. App. 2018).
“095(2)(a). In other words, the state contends that, whatever the remedy may be for violation of ORS 426.”
State v. Johansen, 866 P.2d 470 (Or. Ct. App. 1993).
“*473 ORS 426.095. [7] If, after hearing all the evidence and reviewing the findings of the examiners, the court is persuaded by clear and convincing evidence that the person is mentally ill, [8] then it may order the person committed to a mental hospital for a period of time to…”
State v. J. O. B. (In re J. O. B.), 436 P.3d 91 (Or. Ct. App. 2019).
“See ORS 426.095 (2)(c)(A) - (C) (person alleged to have mental illness, that person's legal counsel or guardian, or the person representing the state are allowed to request a postponement for good cause).”
— Or. Rev. Stat. § 426.095(3) — 2 cases
— Or. Rev. Stat. § 426.095(3)(c) — 1 case
— Or. Rev. Stat. § 426.095(4) — 2 cases
State v. Johansen, 866 P.2d 470 (Or. Ct. App. 1993).
“*473 ORS 426.095. [7] If, after hearing all the evidence and reviewing the findings of the examiners, the court is persuaded by clear and convincing evidence that the person is mentally ill, [8] then it may order the person committed to a mental hospital for a period of time to…”
— Or. Rev. Stat. § 426.095(4)(a) — 1 case
State v. Lott, 122 P.3d 97 (Or. Ct. App. 2005).
“ORS 426.095(4)(a). Second, it also was admissible under OEC 803(4) as part of the report that was reasonably pertinent to appellant's diagnosis or treatment.”
— Or. Rev. Stat. § 426.095(4)(d) — 5 cases
— Or. Rev. Stat. § 426.095(4)(d)(B) — 1 case
State v. Lott, 122 P.3d 97 (Or. Ct. App. 2005).
“ORS 426.095(4)(a). Second, it also was admissible under OEC 803(4) as part of the report that was reasonably pertinent to appellant's diagnosis or treatment.”
— Or. Rev. Stat. § 426.095(4)(d)(C) — 9 cases
State v. Jayne, 23 P.3d 990 (Or. Ct. App. 2001).
“In her first assignment of error, appellant argues that, contrary to ORS 426.095(4)(d)(C), [1] the investigation report prepared by the precommitment investigator was admitted without the investigator being present during the hearing to be cross-examined and without appellant's…”
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