Section 44-48-120 - Petition for release; hearing ordered by court; examination by qualified expert; burden of proof(A) If the Director of the Department of Mental Health determines that the resident's mental abnormality or personality disorder has so changed that the resident is safe to be at large and, if released, is not likely to commit acts of sexual violence, the director must certify such determination in writing with the specific basis thereof, authorize the resident to petition the court for release, and notify the Attorney General of the certification and authorization. Upon receipt of the certification and authorization, the resident or the Attorney General may file a petition for release, which must be served upon the court and the Attorney General, or on opposing counsel if filed by the Attorney General. The Attorney General must notify the victim of the proceeding.(B) The court, upon receipt of the petition for release filed pursuant to subsection (A), must order a hearing within thirty days unless the Attorney General, with notice to the resident, requests an evaluation by a qualified evaluator as to whether the resident's mental abnormality or personality disorder has so changed that the resident is safe to be at large and, if released, is not likely to commit acts of sexual violence, or the resident or the Attorney General requests a trial before a jury. The Attorney General must represent the State and has the right to have the resident examined by a qualified evaluator chosen by the State. If the Attorney General retains a qualified expert who concludes that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and, if released, is likely to commit acts of sexual violence, the petitioner may retain a qualified expert of his own choosing to perform a subsequent examination. In the case of an indigent petitioner who would request an independent qualified evaluator, the indigent petitioner must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs for the evaluator. If the court determines that the services are necessary and the requested compensation is reasonable, then the court must authorize, in written order prior to any fees or expenses being incurred, the petitioner's attorney to obtain the services of an independent qualified evaluator to perform an evaluation or participate in the trial on the petitioner's behalf and authorize the payment from funds available to the Commission on Indigent Defense. All qualified evaluators are permitted to have reasonable access to the resident for the purpose of the examination, as well as reasonable access to all relevant medical, psychological, criminal offense, and disciplinary records and reports, and the court shall order the resident to comply with any reasonable testing and assessments deemed necessary by a qualified evaluator. The burden of proof is upon the Attorney General to show beyond a reasonable doubt that the resident's mental abnormality or personality disorder remains such that the resident is not safe to be at large and, that if released, is likely to commit acts of sexual violence.Amended by 2023 S.C. Acts, Act No. 19 (SB 146),s 10, eff. 5/16/2023.Amended by 2010 S.C. Acts, Act No. 158 (SB 931), s 5, eff. 5/12/2010.2004 Act No. 176, Section 1, eff 2/18/2004; 1998 Act No. 321, Section 1.