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HOUSE BILL 8
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Christine Chandler
AN ACT
RELATING TO PUBLIC SAFETY; PROVIDING THAT A REPORT OF A
COMPETENCY EVALUATION SHALL INCLUDE A QUALIFIED PROFESSIONAL'S
OPINION AS TO WHETHER A DEFENDANT IS COMPETENT TO STAND TRIAL
AND IF, IN THE OPINION OF THE PROFESSIONAL, THE DEFENDANT IS
NOT COMPETENT, TO INCLUDE AN OPINION AS TO WHETHER THE
DEFENDANT SATISFIES THE CRITERIA FOR INVOLUNTARY COMMITMENT OR
ASSISTED OUTPATIENT TREATMENT; PROVIDING FOR COMMUNITY-BASED
COMPETENCY RESTORATION FOR NON-DANGEROUS DEFENDANTS; EXPANDING
THE LIST OF CRIMES FOR WHICH A DEFENDANT MAY BE CRIMINALLY
COMMITTED; PROVIDING FOR THE COURT TO ADVISE A DISTRICT
ATTORNEY TO CONSIDER INITIATING PROCEEDINGS FOR INVOLUNTARY
COMMITMENT OR ASSISTED OUTPATIENT TREATMENT UPON DISMISSAL OF A
CRIMINAL CASE; ALLOWING A COURT TO AUTHORIZE A DISTRICT
ATTORNEY OR THE DEPARTMENT OF HEALTH TO USE THE REPORT OF A
COMPETENCY EVALUATION IN INVOLUNTARY COMMITMENT AND ASSISTED
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OUTPATIENT TREATMENT PROCEEDINGS; AMENDING THE ASSISTED
OUTPATIENT TREATMENT ACT TO AUTHORIZE A DISTRICT ATTORNEY OR
THE ATTORNEY GENERAL TO FILE A PETITION FOR ASSISTED OUTPATIENT
TREATMENT AND TO ALLOW A PETITION TO BE FILED UP TO THIRTY DAYS
AFTER A QUALIFIED PROFESSIONAL HAS EXAMINED A DEFENDANT OR
RESPONDENT; MAKING CONFORMING AMENDMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 31-9-1 NMSA 1978 (being Laws 1988,
Chapter 107, Section 1 and Laws 1988, Chapter 108, Section 1,
as amended by Laws 1993, Chapter 240, Section 1 and also by
Laws 1993, Chapter 249, Section 1) is amended to read:
"31-9-1. DETERMINATION OF COMPETENCY--RAISING THE
ISSUE.--[Whenever it appears that there is a question as to the
defendant's competency to proceed in a criminal case, any
further proceeding in the cause ]
A. When a party or the court raises a question as
to a defendant's competency to stand trial in a criminal case,
the proceeding shall be suspended until the issue is
determined. [Unless the case is dismissed upon motion of a
party, when the question is raised in a court other than the
district court or a metropolitan court, the proceeding shall be
suspended and the cause transferred to the district court. If
the question of a defendant's competency is raised in the
metropolitan court and the court determines that the defendant
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is incompetent to proceed in a criminal case, the cause, if not
dismissed upon motion of a party, shall be transferred to the
district court.]
B. Unless the case is dismissed upon motion of a
party or through diversion:
(1) if the question of a defendant's
competency is raised in a court other than a district court or
a metropolitan court, the case shall be transferred to the
district court; or
(2) if the question of a defendant's
competency is raised in a metropolitan court and the court
determines that the defendant is not competent to stand trial,
the case shall be transferred to the district court. "
SECTION 2. Section 31-9-1.1 NMSA 1978 (being Laws 1988,
Chapter 107, Section 2 and Laws 1988, Chapter 108, Section 2,
as amended by Laws 1993, Chapter 240, Section 2 and also by
Laws 1993, Chapter 249, Section 2) is amended to read:
"31-9-1.1. DETERMINATION OF COMPETENCY--EVALUATION AND
DETERMINATION.--[The]
A. A defendant's competency shall be
[professionally] evaluated by a psychologist or psychiatrist or
other qualified professional recognized by the district court
as an expert. [and a report shall be submitted ] The qualified
professional who evaluates a defendant's competency shall
prepare an evaluation report and submit the report as ordered
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by the court.
B. An evaluation report shall include a qualified
professional's opinion as to whether a defendant is competent
to stand trial and has:
(1) a sufficient, present ability to consult
with the defendant's lawyer with a reasonable degree of
rational understanding;
(2) a rational and factual understanding of
the proceedings against the defendant; and
(3) the capacity to assist in the defendant's
own defense and to comprehend the reasons for punishment.
C. If, in the opinion of the qualified
professional, a defendant is not competent to stand trial, an
evaluation report shall include the qualified professional's
opinion as to whether the defendant:
(1) satisfies the criteria for involuntary
commitment in accordance with the Mental Health and
Developmental Disabilities Code and whether:
(a) as a result of a mental disorder,
the defendant presents a likelihood of serious harm to the
defendant's self or others;
(b) the defendant needs and is likely to
benefit from involuntary commitment and treatment; and
(c) the proposed commitment is
consistent with the treatment needs of the defendant and with
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the least drastic means principle; or
(2) satisfies the criteria for involuntary
treatment in accordance with the Assisted Outpatient Treatment
Act and whether the defendant:
(a) has a primary diagnosis of a mental
disorder;
(b) has demonstrated a history of lack
of compliance with treatment for a mental disorder;
(c) is unwilling or unlikely, as a
result of a mental disorder, to voluntarily participate in
outpatient treatment that would enable the person to live
safely in the community without court supervision;
(d) is in need of assisted outpatient
treatment as the least restrictive appropriate alternative to
prevent a relapse or deterioration likely to result in serious
harm to the defendant's self or others; and
(e) will likely benefit from assisted
outpatient treatment and have the defendant's best interests
served.
D. A competency hearing [on the issue of the
competency of] shall be held:
(1) within thirty days from the date an
evaluation report is submitted to the court for an incarcerated
defendant charged with a felony; [shall be held by the district
court within a reasonable time, but in no event later than
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thirty days after notification to the court of completion of
the diagnostic evaluation. In the case of ]
(2) within ten days from the date an
evaluation report is submitted to the court for an incarcerated
defendant not charged with a felony; [the court shall hold a
hearing and determine his competency within ten days of
notification to the court of completion of the diagnostic
evaluation] and
(3) within a reasonable time after an
evaluation report is submitted to the court for a defendant who
is not incarcerated."
SECTION 3. Section 31-9-1.2 NMSA 1978 (being Laws 1988,
Chapter 107, Section 3 and Laws 1988, Chapter 108, Section 3,
as amended) is amended to read:
"31-9-1.2. DETERMINATION OF COMPETENCY--COMMITMENT--
REPORT.--
A. [When] If, after a competency hearing, a court
determines that a defendant is not competent to [proceed in a
criminal case and the court does not find that ] stand trial,
the court shall determine if the defendant is dangerous. A
defendant who is not competent is dangerous if the court finds
by clear and convincing evidence that the defendant presents a
serious threat of:
(1) committing murder in the first or second
degree, as provided in Section 30-2-1 NMSA 1978;
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(2) inflicting great bodily harm, as defined
in Section 30-1-12 NMSA 1978, on another person;
(3) committing criminal sexual penetration, as
provided in Section 30-9-11 NMSA 1978;
(4) committing criminal sexual contact of a
minor, as provided in Section 30-9-13 NMSA 1978;
(5) committing abuse of a child, as provided
in Subsection D of Section 30-6-1 NMSA 1978;
(6) violating a provision of the Sexual
Exploitation of Children Act;
(7) committing human trafficking, as provided
in Section 30-52-1 NMSA 1978;
(8) committing a felony involving the use of a
firearm; or
(9) committing aggravated arson, as provided
in Section 30-17-6 NMSA 1978.
B. If the court determines that a defendant is not
dangerous, the court may order the defendant to participate in
a community-based competency restoration program or dismiss the
criminal case without prejudice in the interests of justice;
[Upon dismissal the court may advise, the district attorney to
consider initiation of proceedings under the Mental Health and
Developmental Disabilities Code and order the defendant
confined for a maximum of seven days to facilitate preparation
and initiation of a petition pursuant to that code ] provided
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that if the court dismisses the case, the court may:
(1) advise the district attorney to consider
the initiation of involuntary civil commitment proceedings in
accordance with the Mental Health and Developmental
Disabilities Code and may detain the defendant for a maximum of
seven days to facilitate initiation of those proceedings; or
(2) advise the district attorney to consider
initiation of proceedings in accordance with the Assisted
Outpatient Treatment Act but may not detain the defendant for
that purpose.
C. A community-based competency restoration program
is a court-approved program that is designed to restore a
defendant to competency and provided in an outpatient setting
in the community where the defendant resides. A court may
order a defendant to participate in a community-based
competency restoration program for no longer than ninety days,
and:
(1) within thirty days of the date that the
defendant was ordered to participate in a community-based
competency restoration program, the person supervising the
defendant's competency restoration program shall submit a
progress report to the court and both parties that includes:
(a) an initial assessment of the
defendant and a description of the competency restoration
programming that will be provided to the defendant;
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(b) a report on the defendant's
amenability to competency restoration;
(c) an assessment of the program's
capacity to provide appropriate programming for the defendant;
and
(d) an opinion as to the probability of
the defendant being restored to competency within ninety days
from the date that the court ordered the defendant's
participation in the community-based competency restoration
program;
(2) no later than ninety days from the date
that the court ordered the defendant to participate in a
community-based competency restoration program, the court shall
hold a review hearing and determine if the defendant has been
restored to competency and at least seven days prior to the
review hearing, the person supervising the defendant's
competency restoration program shall submit a written report
that includes:
(a) an opinion as to whether the
defendant has been restored to competency;
(b) if the defendant is receiving
medication, information from the prescribing physician about
the type, dosage and effect of the medication on the
defendant's appearance, actions and demeanor;
(c) if the defendant remains not
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competent, an opinion as to whether the defendant satisfies the
criteria for involuntary commitment in accordance with the
Mental Health and Developmental Disabilities Code and whether:
1) as a result of mental disorder, the defendant presents a
likelihood of serious harm to the defendant's self or others;
2) the defendant needs and is likely to benefit from
involuntary commitment and treatment; and 3) the proposed
commitment is consistent with the treatment needs of the
defendant and with the least drastic means principle; and
(d) if the defendant remains not
competent, an opinion as to whether the defendant satisfies the
criteria for involuntary treatment in accordance with the
Assisted Outpatient Treatment Act and whether the defendant:
1) has a primary diagnosis of a mental disorder; 2) has
demonstrated a history of lack of compliance with treatment for
a mental disorder; 3) is unwilling or unlikely, as a result of
a mental disorder, to voluntarily participate in outpatient
treatment that would enable the defendant to live safely in the
community without court supervision; 4) is in need of assisted
outpatient treatment as the least restrictive appropriate
alternative to prevent a relapse or deterioration likely to
result in serious harm to the defendant's self or others; and
5) will likely benefit from assisted outpatient treatment and
have the defendant's best interests served; and
(3) if, after a review hearing, the court
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finds that the defendant is competent, the case shall proceed
to trial, but if the court finds that the defendant remains not
competent, the case shall be dismissed without prejudice and
the court may advise the district attorney to consider
initiating proceedings in accordance with the Mental Health and
Developmental Disabilities Code or the Assisted Outpatient
Treatment Act.
[B. When a district] D. If the court determines
that a [defendant charged with a felony is incompetent to
proceed in the criminal case, but does not dismiss the criminal
case, and the district court at that time makes a specific
finding that the] defendant who is not competent is dangerous,
the district court may commit the defendant as provided in this
section for [treatment to attain competency to proceed in a
criminal case. The court shall enter an appropriate transport
order that also provides for return of the defendant to the
local facilities of the court upon completion of the
treatment. The defendant so committed ] competency restoration.
If the court orders commitment, the court shall enter a
transport order that provides for the defendant's return to the
local jail within seventy-two hours upon the defendant being
restored to competency, completion of the competency
restoration program or as otherwise required by the court. A
defendant committed for competency restoration shall be
provided with treatment available to [involuntarily committed ]
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persons subject to civil commitment , and:
(1) [the defendant] shall be detained by the
department of health in a secure, locked facility; and
(2) [the defendant, during the period of
commitment] shall not be released from that [secure ] facility
except pursuant to an order of the [district ] court that
committed [him] the defendant.
[C.] E. The department of health shall admit a
defendant for competency restoration within thirty days of
receipt of the court's order of commitment of an incompetent
defendant and of the necessary and available documents
reasonably required for admission pursuant to written policies
adopted by the secretary of health or [his designee, the
defendant shall be admitted to a facility designated for the
treatment of defendants who are incompetent to stand trial and
dangerous. If after conducting an investigation ] the
secretary's designee. If the secretary of health or the
secretary's designee determines that the department of health
does not have the ability to meet the [medical ] needs of [a]
the defendant [ordered committed to a facility ], the secretary
or [his] the secretary's designee may refuse admission [to the
defendant upon] by providing written certification to the
committing court and the parties of the [lack of ability ]
department's inability to meet the [medical ] needs of the
defendant. The certification [must ] shall be made within
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fourteen days of the receipt of the court's order of commitment
and necessary and available documents reasonably required for
admission pursuant to written policies adopted by the secretary
or [his] the secretary's designee. Within ten days of filing
of the certification, the court shall conduct a hearing for
further disposition of the criminal case.
[D. As used in Sections 31-9-1 through 31-9-1.5
NMSA 1978, "dangerous" means that, if released, the defendant
presents a serious threat of inflicting great bodily harm on
another or of violating Section 30-9-11 or 30-9-13 NMSA 1978.
E.] F. Within thirty days of [an incompetent ] a
defendant's admission to a department of health facility [to
undergo treatment to attain competency to proceed in a criminal
case, the person supervising the defendant's treatment ] or an
inpatient psychiatric hospital for competency restoration, the
department shall file with the [district ] court, the state and
the defense:
(1) an initial assessment of the defendant and
treatment plan; [and]
(2) a report on the defendant's amenability to
[treatment to render him competent to proceed in a criminal
case] competency restoration ;
(3) an assessment of the [facility's or
program's] department's capacity to provide appropriate
treatment for the defendant; and
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(4) an opinion as to the probability of the
[defendant's attaining ] defendant being restored to competency
within [a period of] nine months from the date [of the original
finding of incompetency to proceed in a criminal case ] the
court determined the defendant is not competent to stand
trial."
SECTION 4. Section 31-9-1.3 NMSA 1978 (being Laws 1988,
Chapter 107, Section 4 and Laws 1988, Chapter 108, Section 4,
as amended) is amended to read:
"31-9-1.3. DETERMINATION OF COMPETENCY--NINETY-DAY
REVIEW--REPORTS--CONTINUING TREATMENT.--
A. Within ninety days [of the entry of the order
committing an incompetent defendant to undergo treatment, the
district court] after a court issues an order committing a
defendant for competency restoration, the court , sitting
without a jury, shall conduct a review hearing, unless waived
by the defense, and shall determine:
(1) whether the defendant [is competent to
proceed in the criminal case; and, if not ] has been restored to
competency or remains not competent to stand trial ;
(2) if the defendant remains not competent ,
whether the defendant is making progress [under treatment ]
toward [attainment of ] being restored to competency within nine
months from the date [of the original finding of incompetency ]
the court determined the defendant is not competent to stand
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trial; and
(3) whether the defendant remains dangerous as
[that term is defined in ] determined by the court in accordance
with Section 31-9-1.2 NMSA 1978.
B. At least seven days prior to the review hearing,
the treatment supervisor shall submit a written progress report
to the court, the state and the defense [indicating ] that
includes:
(1) the clinical findings [of the treatment
supervisor] regarding the defendant's progress toward
competency restoration and the facts upon which the findings
are based;
(2) [the] an opinion [of the treatment
supervisor] as to whether the defendant has [attained ] been
restored to competency or as to whether the defendant is making
progress [under treatment ] toward [attaining] being restored to
competency within nine months from the date [of the original
finding of incompetency ] the court determined the defendant is
not competent to stand trial and whether there is a substantial
probability that the defendant will [attain ] be restored to
competency within nine months from the date [of the original
finding of incompetency ] the court determined the defendant is
not competent to stand trial ;
(3) an opinion as to whether the defendant
[is] remains dangerous as [that term is defined in ] determined
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by the court in accordance with Section 31-9-1.2 NMSA 1978 [or
whether the defendant satisfies the criteria for involuntary
commitment contained in the Mental Health and Developmental
Disabilities Code]; and
(4) if the defendant is receiving medication,
information from the prescribing physician indicating the type,
the dosage and the effect of the medication on the defendant's
appearance, actions and demeanor.
C. If the district court finds that the defendant
[to be competent] is restored to competency , the district court
shall set the matter for trial; provided that if the defendant
is in need of continued care or treatment and the [supervisor
of the defendant's treatment ] department of health agrees to
continue to provide it, the district court may [enter any ]
order [it deems appropriate for the ] continued care or
treatment of the defendant [by the facility or program pending ]
until the conclusion of the criminal proceedings.
D. If the district court finds that the defendant
[is still] remains not competent [to proceed in a criminal
case] but that [he] the defendant is making progress toward
[attaining] being restored to competency, the district court
may continue or modify its original [treatment ] commitment
order entered pursuant to Section 31-9-1.2 NMSA 1978; provided
that:
(1) the question of the defendant's competency
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shall be reviewed again not later than nine months from the
[original determination of incompetency to proceed in a
criminal case] date the court determined the defendant is not
competent to stand trial ; and
(2) the treatment supervisor shall submit a
written progress report as specified in Subsection B of this
section at least seven days prior to such hearing.
E. If the district court finds that the defendant
[is still] remains not competent, that [he ] the defendant is
not making progress toward [attaining ] being restored to
competency and that there is not a substantial probability that
[he] the defendant will [attain] be restored to competency
within nine months from the date [of the original finding of
incompetency the district court ] the court determined the
defendant is not competent to stand trial, the court shall
proceed pursuant to Section 31-9-1.4 NMSA 1978. However, if
the defendant is in need of continued care and treatment and
the [supervisor of the defendant's treatment ] department of
health agrees to continue to provide it, the district court may
[enter any] order [it deems appropriate for the ] continued care
or treatment of the defendant by the [facility or program
pending] department until the conclusion of the criminal
proceedings."
SECTION 5. Section 31-9-1.4 NMSA 1978 (being Laws 1988,
Chapter 107, Section 5 and Laws 1988, Chapter 108, Section 5,
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as amended) is amended to read:
"31-9-1.4. DETERMINATION OF COMPETENCY--INCOMPETENT
DEFENDANTS.--If at any time the district court determines that
there is not a substantial probability that the defendant will
[become competent to proceed in a criminal case within a
reasonable period of time not to exceed nine months from the
date of the original finding of incompetency ] be restored to
competency within nine months from the date the court
determined the defendant is not competent to stand trial , the
district court may:
A. [hear the matter pursuant to ] hold a criminal
commitment hearing in accordance with Section 31-9-1.5 NMSA
1978 within three months if the defendant is charged with [a
felony that involves the infliction of great bodily harm on
another person; a felony that involves the use of a firearm;
aggravated arson, as provided in Section 30-17-6 NMSA 1978;
criminal sexual penetration, as provided in Section 30-9-11
NMSA 1978; or criminal sexual contact of a minor, as provided
in Section 30-9-13 NMSA 1978 ]:
(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;
(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;
(3) criminal sexual penetration, as provided
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in Section 30-9-11 NMSA 1978;
(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;
(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;
(6) a crime provided for in the Sexual
Exploitation of Children Act;
(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;
(8) a felony involving the use of a firearm ;
or8
(9) aggravated arson, as provided in Section
30-17-6 NMSA 1978;
B. release the defendant from custody and dismiss
the criminal case with prejudice [the charges against him ]; or
C. dismiss the criminal case without prejudice in
the interest of justice; provided that if the treatment
supervisor [has issued a report finding ] reports to the court
that the defendant satisfies the criteria for involuntary
commitment [contained ] in accordance with the Mental Health and
Developmental Disabilities Code, the department of health shall
[commence] initiate those proceedings [pursuant to Chapter 43,
Article 1 NMSA 1978], and the court may order the defendant
confined for a maximum of seven days to facilitate [preparation
and] the initiation of [a petition pursuant to the Mental
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Health and Developmental Disabilities code. The district court
may refer the defendant to the district attorney for possible
initiation of proceedings under the Mental Health and
Developmental Disabilities Code ] those proceedings; and
provided further that the district attorney may initiate
involuntary commitment proceedings in the department's stead ."
SECTION 6. Section 31-9-1.5 NMSA 1978 (being Laws 1988,
Chapter 107, Section 6 and Laws 1988, Chapter 108, Section 6,
as amended) is amended to read:
"31-9-1.5. DETERMINATION OF COMPETENCY--CRIMINAL
COMMITMENT--EVIDENTIARY HEARING.--
A. [As provided for in Subsection A of Section
31-9-1.4 NMSA 1978, A ] If the court determines that there is
not a substantial probability that a defendant who is not
competent to stand trial will be restored to competency, a
commitment hearing to determine the sufficiency of the evidence
of the defendant's guilt shall be held if [the case is not
dismissed and if] the defendant is charged with [a felony that
involves the infliction of great bodily harm on another person;
a felony that involves the use of a firearm; aggravated arson,
as provided in Section 30-17-6 NMSA 1978; criminal sexual
penetration, as provided in Section 30-9-11 NMSA 1978; or
criminal sexual contact of a minor, as provided in Section
30-9-13 NMSA 1978. Such ]:
(1) murder in the first or second degree, as
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provided in Section 30-2-1 NMSA 1978;
(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;
(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;
(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;
(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;
(6) a crime provided for in the Sexual
Exploitation of Children Act;
(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;
(8) a felony involving the use of a firearm;
or
(9) aggravated arson, as provided in Section
30-17-6 NMSA 1978.
B. A criminal commitment hearing shall be conducted
by the district court without a jury. The state and the
defendant may introduce evidence relevant to the question of
the defendant's guilt of the crime charged. The district court
may admit hearsay or affidavit evidence on secondary matters
such as testimony to establish the chain of possession of
physical evidence, laboratory reports, authentication of
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transcripts taken by official reporters, district court and
business records and public documents.
[B.] C. If the evidence does not establish by clear
and convincing evidence that the defendant committed [a felony
that involves the infliction of great bodily harm on another
person; a felony that involves the use of a firearm; aggravated
arson, as provided in Section 30-17-6 NMSA 1978; criminal
sexual penetration, as provided in Section 30-9-11 NMSA 1978;
or criminal sexual contact of a minor, as provided in Section
30-9-13 NMSA 1978] the crime charged, the district court shall
dismiss the criminal case with prejudice. [however, nothing in
this section shall prevent the state from initiating
proceedings under the provisions of the Mental Health and
Developmental Disabilities Code, and the court may order the
defendant confined for a maximum of seven days to facilitate
preparation and initiation of a petition pursuant to that code .
C.] D. If the district court finds by clear and
convincing evidence that the defendant committed [a ] the crime
charged and has not made a finding of dangerousness [pursuant
to] in accordance with Section 31-9-1.2 NMSA 1978, the district
court shall dismiss the [charges ] criminal case without
prejudice. [The state may initiate proceedings pursuant to the
provisions of the Mental Health and Developmental Disabilities
Code and the court may order the defendant confined for a
maximum of seven days to facilitate preparation and initiation
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of a petition pursuant to that code.
D.] E. If the district court finds by clear and
convincing evidence that the defendant committed [a felony that
involves the infliction of great bodily harm on another person;
a felony that involves the use of a firearm; aggravated arson,
as provided in Section 30-17-6 NMSA 1978; criminal sexual
penetration, as provided in Section 30-9-11 NMSA 1978; or
criminal sexual contact of a minor, as provided in Section
30-9-13 NMSA 1978] the crime charged and enters a finding that
the defendant remains [incompetent to proceed ] not competent to
stand trial and remains dangerous [pursuant to ] as determined
by the court in accordance with Section 31-9-1.2 NMSA 1978:
(1) the defendant shall be detained by the
department of health in a secure, locked facility;
(2) the defendant shall not be released from
that secure facility except pursuant to an order of the
[district] court [which] that committed [him] the defendant or
upon expiration of the period of time equal to the maximum
sentence to which the defendant would have been subject had the
defendant been convicted in a criminal proceeding;
(3) significant changes in the defendant's
condition, including [but not limited to ] trial competency and
dangerousness, shall be reported in writing to the district
court, state and defense; and
(4) at least every two years, the district
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court shall conduct a hearing upon notice to the parties and
the department of health charged with detaining the defendant.
At the hearing, the court shall enter findings on the issues of
trial competency and dangerousness:
(a) upon a finding that the defendant is
competent to proceed in a criminal case, the court shall
continue with the criminal proceeding;
(b) if the defendant continues to [be
incompetent to proceed in a criminal case ] remain not competent
to stand trial and dangerous [pursuant to ] in accordance with
Section 31-9-1.2 NMSA 1978, the court shall review the
defendant's competency and dangerousness every two years until
expiration of the period of commitment equal to the maximum
sentence to which the defendant would have been subject had [he
or she] the defendant been convicted in a criminal proceeding;
[provided that if the treatment supervisor recommends that the
defendant be committed pursuant to the Mental Health and
Developmental Disabilities Code, the court may at any time
proceed pursuant to Subsection C of Section 31-9-1.4 NMSA 1978 ]
and
(c) [if the defendant is not committed
pursuant to Sections 31-9-1 through 31-9-1.5 NMSA 1978 or ] if
the court finds upon its two-year review hearing that the
defendant is no longer dangerous, [as defined in Section
31-9-1.2 NMSA 1978] the defendant shall be released.
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F. At any time, including after a court dismisses a
case against a defendant, the department of health or the
district attorney may initiate involuntary commitment
proceedings in accordance with the Mental Health and
Developmental Disabilities Code or proceedings in accordance
with the Assisted Outpatient Treatment Act. If the district
attorney indicates an intent to initiate involuntary commitment
proceedings in accordance with the Mental Health and
Developmental Disabilities Code, the court may detain the
defendant for a maximum of seven days only to facilitate the
initiation of those proceedings at any licensed psychiatric
hospital."
SECTION 7. Section 31-9-1.6 NMSA 1978 (being Laws 1997,
Chapter 153, Section 1, as amended) is amended to read:
"31-9-1.6. HEARING TO DETERMINE DEVELOPMENTAL OR
INTELLECTUAL DISABILITY.--
A. Upon motion of the defense, [requesting a
ruling] the court shall hold a hearing to determine whether the
defendant [has] is not competent due to a developmental or
intellectual disability as defined in Subsection E of this
section, and the evaluator shall be provided with the necessary
and available documents reasonably required for admission
pursuant to written policies adopted by the secretary of health
or the secretary's designee .
B. If the court finds by a preponderance of the
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evidence that the defendant [has ] is not competent to stand
trial due to a developmental or intellectual disability and
that there is not a substantial probability that the defendant
will [become competent to proceed in a criminal case ] be
restored to competency within [a reasonable period of time not
to exceed] nine months from the date [of the original finding
of incompetency, then, no later than sixty days from
notification to the secretary of health or the secretary's
designee of the court's findings, the department of health
shall perform an evaluation to ] the court determined the
defendant is not competent to stand trial, the court shall
notify the department of health of the court's finding. Within
sixty days of receipt of the court's notification, the
department of health shall determine whether the defendant
presents a likelihood of serious harm to the defendant's self
or others.
C. If the department of health [evaluation results
in a finding] determines that the defendant presents a
likelihood of serious harm to self or others, [within sixty
days of the department's evaluation ] the department shall
[commence proceedings pursuant to Chapter 43, Article 1 NMSA
1978] initiate involuntary commitment proceedings in accordance
with the Mental Health and Developmental Disabilities Code if
the defendant [was] is charged with [murder in the first
degree, first degree criminal sexual penetration, criminal
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sexual contact of a minor or arson in the initial proceedings,
and the court presiding over the initial proceedings shall
enter a finding that the respondent presents a likelihood of
harm to others]:
(1) murder in the first or second degree, as
provided in Section 30-2-1 NMSA 1978;
(2) a felony involving infliction of great
bodily harm, as defined in Section 30-1-12 NMSA 1978, on
another person;
(3) criminal sexual penetration, as provided
in Section 30-9-11 NMSA 1978;
(4) criminal sexual contact of a minor, as
provided in Section 30-9-13 NMSA 1978;
(5) abuse of a child, as provided in
Subsection D of Section 30-6-1 NMSA 1978;
(6) a crime provided for in the Sexual
Exploitation of Children Act;
(7) human trafficking, as provided in Section
30-52-1 NMSA 1978;
(8) a felony involving the use of a firearm;
or
(9) aggravated arson, as provided in Section
30-17-6 NMSA 1978.
D. [The criminal charges shall be dismissed without
prejudice] After the [hearing pursuant to Chapter 43, Article 1
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NMSA 1978] involuntary commitment hearing or upon expiration of
fourteen months from the court's initial determination that the
defendant is [incompetent to proceed in a criminal case ] not
competent to stand trial, the criminal case shall be dismissed
without prejudice.
E. As used in this section, "developmental or
intellectual disability" means significantly subaverage general
intellectual functioning existing concurrently with deficits in
adaptive behavior. An intelligence quotient of seventy or
below on a reliably administered intelligence quotient test
shall be presumptive evidence of developmental or intellectual
disability."
SECTION 8. Section 31-9-2 NMSA 1978 (being Laws 1967,
Chapter 231, Section 3) is amended to read:
"31-9-2. COMPETENCY EVALUATION --MENTAL OR FUNCTIONAL
EXAMINATION.--
A. Upon motion of any defendant, the court shall
order a mental examination of the defendant before making any
determination of the defendant's competency. [under Sections
41-13-3 or 41-13-3.1 New Mexico Statutes Annotated, 1953
Compilation. Where] If the defendant is determined to be
indigent, the court shall pay for the costs of the examination
from funds available to the court.
B. A court may authorize a district attorney or the
department of health to use a report of any examination ordered
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before a determination of a defendant's competency to stand
trial for the purposes of initiating proceedings in accordance
with the Mental Health and Developmental Disabilities Code or
the Assisted Outpatient Treatment Act; provided that the report
remains valid pursuant to the time limits set forth in that
code or act."
SECTION 9. Section 43-1B-4 NMSA 1978 (being Laws 2016,
Chapter 84, Section 4, as amended) is amended to read:
"43-1B-4. PETITION TO THE COURT.--
A. A petition for an order authorizing assisted
outpatient treatment may be filed in the district court for the
county in which the respondent is present or reasonably
believed to be present; provided that such district court is a
party to a memorandum of understanding with a participating
municipality or county.
B. A petition for an order authorizing assisted
outpatient treatment may be filed only by the following
persons:
(1) a person eighteen years of age or older
who resides with the respondent;
(2) the parent or spouse of the respondent;
(3) the sibling or child of the respondent;
provided that the sibling or child is eighteen years of age or
older;
(4) the director of a hospital where the
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respondent is hospitalized;
(5) the director of a public or charitable
organization or agency or a home where the respondent resides
and that provides mental health services to the respondent;
(6) a qualified professional who either
supervises the treatment of or treats the respondent for a
mental disorder or has supervised or treated the respondent for
a mental disorder within the past forty-eight months; [or ]
(7) a surrogate decision-maker; or
(8) a district attorney or the attorney
general.
C. The petition shall be entitled "In the Matter of
_______" and shall include:
(1) each criterion for assisted outpatient
treatment as set forth in Section 43-1B-3 NMSA 1978;
(2) facts that support the petitioner's belief
that the respondent meets each criterion; provided that the
hearing on the petition need not be limited to the stated
facts; and
(3) whether the respondent is present or is
reasonably believed to be present within the county where the
petition is filed.
D. The petition shall be accompanied by an
affidavit of a qualified professional that shall state that:
(1) the qualified professional has personally
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examined the respondent no more than [ten ] thirty days prior to
the filing of the petition, that the qualified professional
recommends assisted outpatient treatment for the respondent and
that the qualified professional is willing and able to testify
at the hearing on the petition either in person or by
contemporaneous transmission from a different location; or
(2) no more than ten days prior to the filing
of the petition, the qualified professional or the qualified
professional's designee has unsuccessfully attempted to
persuade the respondent to submit to an examination, that the
qualified professional has reason to believe that the
respondent meets the criteria for assisted outpatient treatment
and that the qualified professional is willing and able to
examine the respondent and testify at the hearing on the
petition either in person or by contemporaneous transmission
from a different location."
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