5123.75 Probable cause hearing.

A respondent who is involuntarily placed in an institution or other place as designated in section 5123.77 of the Revised Code or with respect to whom proceedings have been instituted under section 5123.71 of the Revised Code shall, on request of the respondent, the respondent's guardian, or the respondent's counsel, or upon the court's own motion, be afforded a hearing to determine whether there is probable cause to believe that the respondent is a mentally retarded person subject to institutionalization by court order.

(A) The probable cause hearing shall be conducted within two court days from the day on which the request is made. Failure to conduct the probable cause hearing within this time shall effect an immediate discharge of the respondent. If the proceedings are not reinstituted within thirty days, records of the proceedings shall be expunged.

(B) The respondent shall be informed that the respondent may retain counsel and have independent expert evaluation and, if the respondent is an indigent person, be represented by court appointed counsel and have independent expert evaluation at court expense.

(C) The probable cause hearing shall be conducted in a manner consistent with the procedures set forth in division (A) of section 5123.76 of the Revised Code, except divisions (A)(10) and (14) of that section, and the designee of the director of developmental disabilities under section 5123.72 of the Revised Code shall present evidence for the state.

(D) If the court does not find probable cause to believe that the respondent is a mentally retarded person subject to institutionalization by court order, it shall order immediate release of the respondent and dismiss and expunge all record of the proceedings under this chapter.

(E) On motion of the respondent or the respondent's counsel and for good cause shown, the court may order a continuance of the hearing.

(F) If the court finds probable cause to believe that the respondent is a mentally retarded person subject to institutionalization by court order, the court may issue an interim order of placement and, where proceedings under section 5123.71 of the Revised Code have been instituted, shall order a full hearing as provided in section 5123.76 of the Revised Code to be held on the question of whether the respondent is a mentally retarded person subject to institutionalization by court order. Unless specifically waived by the respondent or the respondent's counsel, the court shall schedule said hearing to be held as soon as possible within ten days from the probable cause hearing. A waiver of such full hearing at this point shall not preclude the respondent from asserting the respondent's right to such hearing under section 5123.76 of the Revised Code at any time prior to the mandatory hearing provided in division (H) of section 5123.76 of the Revised Code. In any case, if the respondent has waived the right to the full hearing, a mandatory hearing shall be held under division (H) of section 5123.76 of the Revised Code between the ninetieth and the one hundredth day after the original involuntary detention of the person unless the respondent has been discharged.

(G) Whenever possible, the probable cause hearing shall be held before the respondent is taken into custody.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980