29-3702. Evidentiary hearing; determination; release or court-ordered treatment; personnel at facility violating order of commitment; contempt.
(1) Prior to the expiration of the evaluation period provided for in section 29-3701, the court shall conduct an evidentiary hearing regarding the condition of the person, at which time a representative of the facility where he or she was evaluated may testify as to the results of the evaluation and the contents of the treatment plan. Based upon the results of the evaluation, evidence adduced at trial, evidence of other omissions, threats, or overt acts indicative of dangerousness, and any other relevant evidence, the court shall determine whether the person is dangerous to himself, herself, or others by reason of mental illness or defect, will be so dangerous in the foreseeable future, or will be so dangerous absent continuing participation in appropriate treatment.
(2) If the court does not find that there is clear and convincing evidence of such dangerousness, as demonstrated by omissions, threats, or overt acts, the court shall unconditionally release the person from further court-ordered treatment. If the court finds clear and convincing evidence of such dangerousness, as demonstrated by omissions, threats, or overt acts, the court shall order that such person participate in an appropriate treatment program specifying conditions of liberty and monitoring consistent with the treatment needs of the person and the safety of the public. The treatment program may involve any public or private facility or program which offers treatment for mental illness and may include an inpatient, residential, day, or outpatient setting. The court shall place the person in the least restrictive available treatment program that is consistent with the treatment needs of the person and the safety of the public. Personnel at the facility providing the treatment program shall obey the court-ordered conditions, and any person who fails to do so shall upon conviction be subject to the full contempt powers of the court.
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Annotations
In determining whether an act is sufficiently recent to be probative of dangerousness, each case must be decided on the basis of the surrounding facts and circumstances. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).
The time limits set forth in section 29-3701 and this section are directory, not mandatory, and dismissal of the proceedings is not a proper remedy for a nonprejudicial violation of section 29-3701 and this section. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).
The provisions of this section and section 29-3701 which set out the time in which the patient is to be provided a hearing and the report of the hospital is to be provided to the court do not relate to the essence of the statutes but govern the time or manner of performance of the thing to be done and are directory as opposed to mandatory. State v. Steele, 224 Neb. 476, 399 N.W.2d 267 (1987).