Worried this will happen: Husband is upset that he is being served divorce papers and calls police to falsely Baker Act wife.
Question: If the police find no evidence of danger are they still required to take the wife into custody or is it at their discretion? What can the wife do to prevent being falsely Baker acted. Addition: They have an infant son who resides with her.
Admiralty / Maritime Attorney
If the police find no evidence of danger (or the other statutory criteria) they are not allowed to take the wife into custody. The Florida Mental Health Act, also known as the Baker Act, is found in part I of chapter 394, from sections 394.451 to 394.4789, Florida Statutes. A law enforcement officer is allowed to take a person into custody for an involuntary examination ONLY if it appears to the officer that the person meets the criteria specified in the statute:
There is reason to believe that the person has a mental illness and because of his or her mental illness:
(a)1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or
2. The person is unable to determine for himself or herself whether examination is necessary; and
(b)1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or
2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.
Once the officer has taken the person into custody, the officer must prepare and sign a written report detailing the circumstances under which the person was taken into custody (the report becomes a part of the patient’s clinical record). The mental health facility accepting the patient will evaluate this report and must send a copy of the report to the Agency for Health Care Administration on the next working day for further evaluation and analysis.
I posted a link to additional information below.
Criminal Defense Attorney
No, the police are not required to Baker Act someone. The best thing to do is hire an attorney.
R. Jason de Groot, Esq. We do not have an attorney-client relationship. I am not your lawyer. The statements I make do not constitute legal advice. Any statements made by me are based upon the limited facts you have presented, and under the premise that you will consult with a local attorney. This is not an attempt to solicit business. This disclaimer is in addition to any disclaimers that this website has made. I am only licensed in Florida.
Civil Rights Attorney
The answers given are spot on. However, evidence of NO danger is the key. The statute says: "A law enforcement officer SHALL take a person who appears to meet the criteria for involuntary examination into custody..." So, the officer has little discretion if there is evidence of danger. You can rest assured that the officer will say there was evidence of danger. The question would become "would a reasonable officer find evidence of danger?" Sometimes people served with divorce papers can become a risk.
Police are going to err on the side of safety. You would need to prove a pattern of unwarranted Baker Acts. You should get a family/divorce lawyer and inform him/her of this abuse.
My answer to your question is for general purposes only, and we do not have an attorney-client relationship.