BP BHEAD INT H

AN ACT Relating to amendments to the violence reduction act to ensure the right of persons who receive mental health treatment; amending RCW 9.41.040, 9.41.047, and 18.51.010; repealing RCW 71.12.560; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 9.41.040 and 1995 c 129 s 16 (Initiative Measure No. 159) are each amended to read as follows:

UNLAWFUL POSSESSION OF A FIREARM IN THE FIRST AND SECOND DEGREECOWNERSHIP, POSSESSION OF FIREARMS PROHIBITED FROM CERTAIN PERSONS. (1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted in this state or elsewhere of any serious offense as defined in this chapter, residential burglary, reckless endangerment in the first degree, any felony violation of the uniform controlled substances act, chapter 69.50 RCW, classified as a class A or class B felony, or with a maximum sentence of at least ten years, or both, or equivalent statutes of another jurisdiction, except as otherwise provided in subsection (3) or (4) of this section;

(b) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under (a) of this subsection for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm:

(i) After having previously been convicted of any remaining felony violation of the uniform controlled substances act, chapter 69.50 RCW, or equivalent statutes of another jurisdiction not specifically listed as prohibiting firearm possession under (a) of this subsection, any remaining felony in which a firearm was used or displayed and the felony is not specifically listed as prohibiting firearm possession under (a) of this subsection, any domestic violence offense enumerated in RCW 10.99.020((~~(2)~~))(3), or any harassment offense enumerated in RCW 9A.46.060, except as otherwise provided in subsection (3) or (4) of this section;

(ii) After having previously been convicted on three occasions within five years of driving a motor vehicle or operating a vessel while under the influence of intoxicating liquor or any drug, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047;

(iii) After having ((~~previously~~)) been involuntarily committed for ((~~mental health~~)) treatment of a mental disorder for a period exceeding fourteen days under RCW 71.05.320((,)) or 71.34.090((~~, chapter 10.77 RCW~~)) or having been committed or detained pursuant to the criminal insanity procedures under RCW 10.77.090 or 10.77.110, or equivalent statutes of another jurisdiction, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047; and/or

(iv) If the person is under eighteen years of age, except as provided in RCW 9.41.042.

(2)(a) Unlawful possession of a firearm in the first degree is a class B felony, punishable under chapter 9A.20 RCW.

(b) Unlawful possession of a firearm in the second degree is a class C felony, punishable under chapter 9A.20 RCW.

(3) As used in this section, a person has been "convicted" at such time as a plea of guilty has been accepted or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(4) Notwithstanding subsection (1) of this section, a person convicted of an offense prohibiting the possession of a firearm under this section other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances under RCW 69.50.401(a) and 69.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction. Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) of this section and has not previously been convicted of a sex offense prohibiting firearm ownership under subsection (1) of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored:

(a) Under RCW 9.41.047; and/or

(b) After five or more consecutive years in the community without being convicted or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.360.

(5)(a) A person who has been committed by court order for treatment of mental disorder under RCW 71.05.320 or chapter 10.77 RCW, or equivalent statutes of another jurisdiction, may not possess, in any manner, a firearm as defined in RCW 9.41.010.

(b) At the time of involuntary commitment, the court shall specifically state to the person under (a) of this subsection and give the person notice in writing that the person is barred from possession of firearms.

(c) The secretary of social and health services shall develop appropriate rules to create a process under this subsection. The rules must provide for the immediate restoration of the right to possess a firearm upon a showing in a court of competent jurisdiction that a person no longer is required to participate in an inpatient or outpatient treatment program, and is no longer required to take medication to treat any condition related to the commitment. Unlawful possession of a firearm under this subsection shall be punished as a class C felony under chapter 9A.20 RCW.

(6) In addition to any other penalty provided for by law, if a person under the age of eighteen years is found by a court to have possessed a firearm in a vehicle in violation of subsection (1) of this section or to have committed an offense while armed with a firearm during which offense a motor vehicle served an integral function, the court shall notify the department of licensing within twenty-four hours and the person's privilege to drive shall be revoked under RCW 46.20.265.

((~~(6)~~)) (7) Nothing in chapter 129, Laws of 1995 shall ever be construed or interpreted as preventing an offender from being charged and subsequently convicted for the separate felony crimes of theft of a firearm or possession of a stolen firearm, or both, in addition to being charged and subsequently convicted under this section for unlawful possession of a firearm in the first or second degree. Notwithstanding any other law, if the offender is convicted under this section for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, then the offender shall serve consecutive sentences for each of the felony crimes of conviction listed in this subsection.

((~~(7)~~)) (8) Each firearm unlawfully possessed under this section shall be a separate offense.

Sec. 2. RCW 9.41.047 and 1994 sp.s. c 7 s 404 are each amended to read as follows:

(1)((~~(a)~~)) At the time a person is convicted of an offense making the person ineligible to possess a firearm, or at the time a person is committed by court order under RCW 71.05.320((,)) or 71.34.090((~~, or chapter 10.77 RCW for mental health treatment~~)) or is committed or detained under RCW 10.77.090 or 10.77.110, the convicting or committing court shall notify the person, orally and in writing, that the person may not possess a firearm unless his or her right to do so is restored by a court of record.

The convicting or committing court also shall forward a copy of the person's driver's license or identicard, or comparable information, to the department of licensing, along with the date of conviction or commitment.

(2) Upon receipt of the information provided for by subsection (1) of this section, the department of licensing shall determine if the convicted or committed person has a concealed pistol license. If the person does have a concealed pistol license, the department of licensing shall immediately notify the license-issuing authority.

(3) A person who is prohibited from possessing a firearm by reason of having previously been convicted on three occasions of driving a motor vehicle or operating a vessel while under the influence of intoxicating liquor or any drug may, after five continuous years without further conviction for any alcohol-related offense, petition a court of record to have his or her right to possess a firearm restored.

(4)(a) A person who is prohibited from possessing a firearm, by reason of having been ((~~either:~~

~~(ii)~~)) involuntarily committed ((~~for mental health treatment~~)) under RCW 71.05.320, 71.34.090, chapter 10.77 RCW, or equivalent statutes of another jurisdiction, may, upon discharge, petition a court of record to have his or her right to possess a firearm restored.

(b) At a minimum, a petition under this subsection (4) shall include the following:

(i) The fact, date, and place of commitment;

(ii) The place of treatment;

(iii) The fact and date of release from commitment;

(iv) A certified copy of the most recent order, if one exists, of commitment, with the findings of fact and conclusions of law; and

(v) A statement by the person that he or she is no longer required to participate in an inpatient or outpatient treatment program, is no longer required to take medication to treat any condition related to the commitment, and does not present a substantial danger to himself or herself, to others, or to the public safety.

(c) A person petitioning the court under this subsection (4) shall bear the burden of proving by a preponderance of the evidence that the circumstances resulting in the commitment no longer exist and are not reasonably likely to recur.

Sec. 3. RCW 18.51.010 and 1983 c 236 s 1 are each amended to read as follows:

(1) "Nursing home" means any home, place or institution which operates or maintains facilities providing convalescent or chronic care, or both, for a period in excess of twenty-four consecutive hours for three or more patients not related by blood or marriage to the operator, who by reason of illness or infirmity, are unable properly to care for themselves. Convalescent and chronic care may include but not be limited to any or all procedures commonly employed in waiting on the sick, such as administration of medicines, preparation of special diets, giving of bedside nursing care, application of dressings and bandages, and carrying out of treatment prescribed by a duly licensed practitioner of the healing arts. It may also include care of mentally incompetent persons. It may also include community-based care. Nothing in this definition shall be construed to include general hospitals or other places which provide care and treatment for the acutely ill and maintain and operate facilities for major surgery or obstetrics, or both. Nothing in this definition shall be construed to include any boarding home, guest home, hotel or related institution which is held forth to the public as providing, and which is operated to give only board, room and laundry to persons not in need of medical or nursing treatment or supervision except in the case of temporary acute illness. The mere designation by the operator of any place or institution as a hospital, sanitarium, or any other similar name, which does not provide care for the acutely ill and maintain and operate facilities for major surgery or obstetrics, or both, shall not exclude such place or institution from the provisions of this chapter: PROVIDED, That any nursing home providing psychiatric treatment shall, with respect to patients receiving such treatment, comply with ((~~the provisions of~~)) RCW ((~~71.12.560 and~~)) 71.12.570.

(2) "Person" means any individual, firm, partnership, corporation, company, association, or joint stock association, and the legal successor thereof.

(3) "Secretary" means the secretary of the department of social and health services.

(4) "Department" means the state department of social and health services.

(5) "Community-based care" means but is not limited to the following:

(a) Home delivered nursing services;

(b) Personal care;

(d) Nutritional services, both in-home and in a communal dining setting;

(e) Habilitation care; and

(f) Respite care.

NEW SECTION. Sec. 4. RCW 71.12.560 and 1994 sp.s. c 7 s 441, 1974 ex.s. c 145 s 1, 1973 1st ex.s. c 142 s 1, & 1959 c 25 s 71.12.560 are each repealed.