ENTITLED An Act to revise provisions related to emergency and involuntary commitment for alcohol and drug abuse.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That   34-20A-2 be AMENDED:

34-20A-2. Terms used in this chapter mean:

(1) "Accredited prevention or treatment facility," a private or public agency meeting the standards prescribed in   34-20A-27 or a private or public agency or facility surveyed and accredited by The Joint Commission; an Indian Health Service's quality assurance review under the Indian Health Service Manual, Professional Standards-Alcohol/Substance Abuse; or the Commission on Accreditation of Rehabilitation Facilities; or the Council on Accreditation; under the drug and alcohol treatment standards incorporated and adopted by the division in rules promulgated pursuant to chapter 1-26, if proof of the accreditation, with accompanying recommendations, progress reports and related correspondence are submitted to the division in a timely manner;

(2) "Addiction counselor," a person licensed or certified as an addiction counselor by the South Dakota Board of Addiction and Prevention Professionals;

(3) "Alcoholic," a person who habitually lacks self-control as to the use of alcoholic beverages, or uses alcoholic beverages to the extent that the person's health is substantially impaired or endangered or the person's social or economic function is substantially disrupted;

(4) "Department," the Department of Social Services;

(5) "Division," the Division of Behavioral Health within the department;

(6) "Drug abuser," a person who habitually lacks self-control as to the use of controlled drugs or substances as defined in   34-20B-3 to the extent that the person's health is substantially impaired or endangered or that the person's social or economic function is substantially disrupted;

(7) "Incapacitated by the effects of alcohol or drugs," that a person, as a result of the use of alcohol or other drugs, is unconscious or the person's judgment is otherwise so impaired that the person is incapable of realizing and making a rational decision with respect to the person's need for treatment;

(8) "Incompetent person," a person who has been adjudged incompetent by the circuit court;

(9) "Intoxicated person," a person who demonstrates diminished mental or physical capacity while under the influence of alcohol or other drugs;

(10) "Prevention," purposeful activities designed to promote personal growth of a person and strengthen the aspects of the community environment that are supportive to the person in order to preclude, prevent, or impede the development of alcohol or other drug misuse and abuse; and

(11) "Treatment," the broad range of emergency, outpatient, intermediate, and inpatient services and care, including diagnostic evaluation, that may be extended to a person experiencing problems as a result of the use of alcohol or other drugs.

Section 2. That chapter 34-20A be amended with a NEW SECTION:

For the purposes of this chapter, the term, next of kin, means, in order of priority stated, the person's:

(1) Spouse, if not legally separated;

(2) Adult son or daughter;

(3) Parent; and

(4) Adult brother or sister.

Section 3. That   34-20A-63 be AMENDED:

34-20A-63. An intoxicated person, or a person receiving treatment for withdrawal management, may be detained in an approved treatment facility for emergency treatment if the person:

(1) Has threatened, attempted, or inflicted physical harm on oneself or on another or is likely to inflict physical harm on another unless detained;

(2) Is incapacitated by the effects of alcohol or drugs; or

(3) Is pregnant and abusing alcohol or drugs.

A refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment.

Section 4. That   34-20A-68 be AMENDED:

34-20A-68. If, after the person detained under   34-20A-63 completes treatment, the administrator or an authorized designee determines that the grounds for emergency detainment no longer exist, the facility shall discharge the person, unless a petition for involuntary commitment under   34-20A-70 has been filed.

Section 5. That   34-20A-69 be AMENDED:

34-20A-69. No person detained under   34-20A-63 may be detained in any treatment facility for more than five days, excluding Saturdays, Sundays, and legal holidays, except as follows. If a petition for involuntary commitment under   34-20A-70 has been filed within the five days, excluding Saturdays, Sundays, and legal holidays, the administrator or authorized designee may detain the person until the petition has been heard and determined, but no longer than ten days, excluding Saturdays, Sundays, and legal holidays, after the date the petition was filed.

Section 6. That   34-20A-70 be AMENDED:

34-20A-70. A person may be committed by the circuit court upon the petition of the person's spouse or guardian, a relative, a physician, the administrator of any approved treatment facility, or any other responsible person. Any person applying for commitment shall do so to the circuit court through the clerk of courts of the county in which the person to be committed resides or is present. The circuit court judge, upon receipt of a written application prepared by the clerk of courts, shall appoint an attorney to represent the applicant. The appointed attorney shall investigate the grounds upon which the application is based and shall within five days, excluding Saturdays, Sundays, and legal holidays, submit a written report to the circuit court as to whether probable cause exists that the person subject of the petition is an alcoholic or drug abuser. All information obtained as a result of the investigation and written report shall be documented and made a part of the record of any further proceedings. The petition shall allege that the person is an alcoholic or drug abuser who habitually lacks self‑control as to the use of alcoholic beverages or other drugs and:

(1) Has threatened, attempted, or inflicted physical harm on himself or herself or on another and that unless committed is likely to inflict harm on himself or herself or on another; or

(2) Is incapacitated by the effects of alcohol or drugs; or

(3) Is pregnant and abusing alcohol or drugs.

A refusal to undergo treatment does not constitute evidence of lack of judgment as to the need for treatment.

Section 7. That   34-20A-70.2 be AMENDED:

34-20A-70.2. Any application for emergency detainment, petition for commitment, application for commitment, order for a court-appointed examination, or written report to the circuit court must be sealed and may not be used for the purpose of enforcing the provisions of chapter 22-42 and chapter 22-42A against the person being committed. Any law enforcement official or prosecuting attorney may petition the circuit court to examine these documents, and the court may allow such examination upon a showing that the purpose of the examination is not to investigate a violation of chapter 22-42 or chapter 22-42A against the person being committed. Any information obtained from the examination of the application for emergency detainment, petition for commitment, application for commitment, order for a court-appointed examination, or written report to the circuit court may not be used against the person being committed in any prosecution for a violation of chapter 22-42 or chapter 22-42A.

Section 8. That chapter 34-20A be amended with a NEW SECTION:

If the person whose commitment is sought is not being detained in a facility under   34-20A-63, a request for an examination of the person by a licensed physician or addiction counselor must be filed with the court. The court may order an examination of the person by a licensed physician or addiction counselor and shall provide notice to the person whose commitment is sought of the request for an examination.

Section 9. That   34-20A-72 be AMENDED:

34-20A-72. A petition filed under   34-20A-70 for a person who is detained under   34-20A-63 must be accompanied by a certificate of a licensed physician or an addict