HOUSE HEALTH AND HUMAN SERVICES COMMITTEE SUBSTITUTE FOR

HOUSE BILL 233

56th legislature - STATE OF NEW MEXICO - second session, 2024

 

 

 

 

 

 

 

AN ACT

RELATING TO CRIMINAL PROCEDURE; PROVIDING FOR THE DETERMINATION OF COMPETENCY; PROVIDING A PROCESS FOR RAISING THE ISSUE OF COMPETENCY; ESTABLISHING COMPETENCY RESTORATION PROGRAMS; REQUIRING ADDITIONAL REPORTS; PROVIDING DEFINITIONS; REQUIRING THE STATE TO PAY FOR MENTAL EXAMINATIONS.

 

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Chapter 108, Section 1, as amended by Laws 1993, Chapter 240, Section 1 and by Laws 1993, Chapter 249, Section 1) is repealed and a new Section 31-9-1 NMSA 1978 is enacted to read:

     "31-9-1. [NEW MATERIAL] DETERMINATION OF COMPETENCY--RAISING THE ISSUE.--

          A. Whenever one of the parties or the court has a good-faith basis that there is concern relating to a defendant's competence, the case shall be stayed, the court shall order a competency evaluation and the issue of competency may be resolved pursuant to Section 31-9-1.1 NMSA 1978 or, prior to, or instead of ordering a competency evaluation:

                (1) if the parties agree, the court may order that the defendant be diverted to a treatment program if such programs are available to the jurisdiction of the referring court and available within a reasonable time; or

                (2) if the parties agree, the parties shall file a stipulated petition requesting that the defendant be considered for assisted outpatient treatment.

          B. In misdemeanor cases, if the parties agree, a defendant may be ordered to participate in a diversion to treatment program for no longer than six months. When a defendant is diverted to treatment in a misdemeanor case in magistrate court under the provisions of this subsection, the case shall not transfer to district court. A misdemeanor case in the metropolitan court shall remain within the jurisdiction of the metropolitan court regardless of whether the defendant is diverted to a treatment program.

          C. In nonviolent felony cases, the parties may agree, with approval of the court, that the defendant be referred for participation in an available diversion to treatment program for no longer than eighteen months.

          D. The defendant's charges shall be dismissed after the time period for completion of the diversion program has elapsed or upon the defendant's acceptance into assisted outpatient treatment. The defendant shall not be required to undergo a competency evaluation for the case while the defendant is participating in a diversion to treatment program."

     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 by Laws 1993, Chapter 249, Section 2) is amended to read:

     "31-9-1.1. DETERMINATION OF COMPETENCY--EVALUATION AND DETERMINATION.--[The defendant's competency shall be professionally evaluated]

          A. When a court determines that an individual requires a competency evaluation, the evaluation shall be conducted by a psychologist or psychiatrist or other qualified professional recognized by the [district] court as an expert and a report shall be submitted as ordered by the court. Competency evaluations shall include a provisional diagnosis, or full diagnosis when possible, linking symptom interference with competency capacities, as well as appropriate treatment recommendations.

          B. A hearing on the same day regarding the issue of [the] competency and dangerousness of an incarcerated defendant charged with a felony shall be held by the district court within a reasonable time, but in no event later than thirty days after notification to the court of completion of the diagnostic evaluation. [In the case of 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.]"

     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 repealed and a new Section 31-9-1.2 NMSA 1978 is enacted to read:

     "31-9-1.2. [NEW MATERIAL] DETERMINATION OF COMPETENCY--COMPETENCY RESTORATION PROGRAMS--COMMITMENT--REPORT.--

          A. A court shall hold a hearing on the same day to determine whether a defendant is incompetent to proceed in a criminal case and whether the defendant is dangerous. If the defendant is found competent, the stay shall be lifted and the case shall be scheduled for trial or any other type of hearing the court deems appropriate. If the defendant is determined to be incompetent and not dangerous, the court shall dismiss the criminal case without prejudice. If the defendant is determined by the court to be incompetent and dangerous, the court shall order treatment in the least restrictive setting consistent with the goal of restoration to competency. The court may refer the defendant to a community competency restoration program, which may be outpatient or residential and may be provided in person or by electronic means. The community competency restoration program may be provided by a state hospital or a county, community or private institution or a facility that is authorized by the department of health or the health care authority department to provide competency restoration. Competency restoration facilities and providers shall provide a written report to the court every thirty days regarding the defendant's status, participation in the program and possible changes to necessary level of care. In addition, facilities and providers shall notify the court immediately if services are terminated. A defendant will only be eligible for community competency restoration if the court finds that the placement will not pose an unreasonable risk to the health and safety of the defendant, any person or the community. If the defendant is committed to a state hospital for competency restoration and is subsequently transferred to any other facility or program, copies of the documents specific to treatment shall be electronically transferred or taken with the defendant to each subsequent facility to which the defendant is transferred.

          B. In the event of dismissal of a criminal case, the court, the city attorney, the county attorney, the district attorney or anyone else authorized by law may refer the defendant for an eligibility determination for civil commitment proceedings under the Mental Health and Developmental Disabilities Code, and the court may order the defendant confined for a maximum of seven days to facilitate the filing of an order referring the defendant for an assessment to determine eligibility for civil commitment.

          C. The court shall hold a hearing on the same day to determine whether a defendant charged with a felony is incompetent to proceed in the criminal case, and, if the court makes a specific finding that the defendant is dangerous, the court may order the defendant to a competency restoration program. If the defendant is ineligible for competency restoration, the defendant shall be committed and provided with treatment available to involuntarily committed persons, and:

                (1) if the defendant is committed to the state hospital, the defendant shall be detained by the department of health in a secure, locked facility until completion of treatment, and appropriate communication shall be provided with all parties listed in this subsection;

                (2) upon the defendant's completion of competency restoration and the submission of a final report to the state, defense counsel and the court, the court shall enter an order to transport the defendant to the appropriate county detention facility, if applicable; and

                (3) upon release, the committing facility shall forward a discharge plan and treatment documents to the receiving provider or facility, if applicable.

          D. 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 the secretary's designee, the defendant shall be admitted to an inpatient or outpatient facility designated for the treatment of defendants who are incompetent to stand trial and dangerous.

          E. If, after conducting an investigation, 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 defendant ordered to commitment, the secretary or the secretary's designee may refuse admission of the defendant upon written certification to the committing court and the parties of the lack of ability to meet the medical needs of the defendant. The certification shall be made within 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 the secretary's designee. Within ten days of filing of certification, the court shall conduct a hearing for further disposition of the criminal case."

     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 thirty days of an incompetent defendant's admission to an inpatient or outpatient facility to undergo community competency restoration, the competency restoration supervisor shall file with the district court, the state and the defense an initial assessment and treatment plan and a report on the likelihood of the defendant attaining competency. The report shall include an assessment of the facility's capacity to provide appropriate competency restoration for the defendant; and an opinion as to the probability of the defendant attaining competency within a period of nine months from the date of admission.

          [A.] B. Within ninety days of the entry of the order committing an incompetent defendant to the state hospital to undergo [treatment] competency restoration, the district court, sitting without a jury, shall conduct a hearing, unless waived by the defense, and shall determine:

                (1) whether the defendant is competent to proceed in the criminal case; and, if not,

                (2) whether the defendant is making progress [under treatment] toward attainment of competency within nine months from the date of the original finding of incompetency; and

                (3) whether the defendant remains dangerous as that term is defined in Section 31-9-1.2 NMSA 1978. 

          [B.] C. At least seven days prior to the ninety-day review hearing, the treatment supervisor shall submit a written progress report to the court, the state and the defense indicating:

                (1) the clinical findings of the treatment supervisor and the facts upon which the findings are based;

                (2) the opinion of the treatment supervisor as to whether the defendant has attained competency or [as to whether the defendant] is making progress under treatment toward attaining competency within nine months from the date of the original finding of incompetency and whether there is a substantial probability that the defendant will attain competency within nine months from the date of the original finding of incompetency;

                (3) whether the defendant is dangerous as that term is defined in Section [31-9-1.2] 31-9-1.7 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.] D. If the district court finds the defendant to be competent, 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 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 the conclusion of the criminal proceedings.

          [D.] E. If the district court finds that the defendant is still not competent to proceed in a criminal case but that [he] the defendant is making progress toward attaining competency, the district court may continue or modify its original treatment order entered pursuant to Section 31-9-1.2 NMSA 1978; provided that:

                (1) the question of the defendant's competency shall be reviewed again not later than nine months from the original determination of incompetency to proceed in a criminal case; and

                (2) the [treatment] competency restoration supervisor shall submit a written progress report as specified in Subsection [B] C of this section at least seven days prior to such hearing.

          [E.] F. If the district court finds that the defendant is still not competent, that [he] the defendant is not making progress toward attaining competency and that there is not a substantial probability that [he] the defendant will attain competency within nine months from the date of the original finding of incompetency, the district 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 agrees to continue to provide it, the district court may enter any order it deems appropriate for the continued care or treatment by the facility or program pending the conclusion of the proceedings."

     SECTION 5. Section 31-9-1.4 NMSA 1978 (being Laws 1988, Chapter 107, Section 5 and Laws 1988, Chapter 108, Section 5, 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, the district court may: