36-3709. Petition for change of status; procedures

A. If the superintendent of the state hospital or the director of the department of health services determines that the person's mental disorder has so changed that the person is not likely to engage in acts of sexual violence if conditionally released to a less restrictive alternative, the superintendent or director shall allow the person to petition the court for conditional release to a less restrictive alternative. The person 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 respondent will not be substantially prejudiced. The county attorney or the attorney general shall represent the state at the hearing and may request that the petitioner be examined by a competent professional selected by the county attorney or the attorney general. The attorney for the state has the burden of proving beyond a reasonable doubt that the petitioner's mental disorder has not changed and that the petitioner remains a danger to others and is likely to engage in acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged.

B. This section does not prohibit the committed person from annually petitioning the court for conditional release to a less restrictive alternative without the approval of the superintendent of the state hospital or the director of the department of health services. The director of the department of health services shall give annual written notice to the committed person of the person's right to petition the court for conditional release to a less restrictive alternative without the approval of the superintendent or director. The notice shall contain a waiver of rights. The director shall submit the notice and waiver to the court with the annual examination report.

C. The committed person may be present at the hearing. The county attorney or the attorney general may request that the person be examined by a competent professional selected by the attorney for the state. The committed person may retain and the court on request of an indigent person may appoint a competent professional. The attorney for the state has the burden of proving beyond a reasonable doubt that the person's mental disorder has not changed and that the person remains a danger to others and is likely to engage in acts of sexual violence if conditionally released to a less restrictive alternative. If the state does not meet its burden of proof, the person shall be discharged from treatment.

D. If at the conclusion of a hearing the court finds that there is no legally sufficient evidentiary basis to conclude that the conditions prescribed in section 36-3711 have been met, the court shall grant the state's motion for a judgment on the issue of conditional release to a less restrictive alternative.