FILED: October 18, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of J. D.,
Alleged to be a Mentally Ill Person.

STATE OF OREGON,

Respondent,

v.

J. D.,

Appellant.

0407-68402; A125785

Appeal from Circuit Court, Multnomah County.

Lewis B. Lawrence, Judge pro tempore.

Submitted on record and briefs September 1, 2006.

Susan D. Isaacs submitted the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Laura S. Anderson, Senior Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Schuman and Ortega, Judges.

PER CURIAM

Reversed.

PER CURIAM

In this mental commitment case, appellant advances two assignments of error: (1) the trial court erred in failing to dismiss the case when he was not released after the expiration of a five-day initial hold; and (2) in any event, the trial court erred in finding that, because of a mental illness, appellant is a danger to himself and unable to provide for his own basic personal needs. The state concedes the first assignment and contends that, as a result, we need not address the second.

It is undisputed that a physician's hold was placed on appellant on July 20, 2004, and forwarded to a precommitment investigator. The case was not submitted to a hearing within the next five days. A physician, however, placed appellant on a second hold on July 26, 2004. ORS 426.232(2) provides that a physician may approve a person for emergency care or treatment at a nonhospital facility, provided that the physician immediately notifies certain specified local mental health personnel. The statute then provides that, "[h]owever, under no circumstances may the person be held for longer than five judicial days" without a hearing, subject to exceptions not pertinent to this case. Id.

We agree with appellant and the state that the trial court erred in failing to dismiss the case when appellant was not released after the expiration of five days on the initial hold. State v. Bradsteen, 196 Or App 634, 106 P3d 647 (2004). In light of that decision, we need not address appellant's other assignment of error.

Reversed.


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