SENATE BILL 10

56th legislature - STATE OF NEW MEXICO - first special session, 2024

INTRODUCED BY

Mark Moores

 

 

 

 

 

AN ACT

RELATING TO COMPETENCY PROCEEDINGS; REQUIRING THE COURT TO ADVISE THE DISTRICT ATTORNEY TO CONSIDER INITIATION OF PROCEEDINGS UNDER THE MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES CODE IN CERTAIN CIRCUMSTANCES; REQUIRING THE CONFINEMENT OF A DEFENDANT IN CERTAIN CIRCUMSTANCES; PROVIDING FOR THE INITIATION OF CIVIL COMMITMENT PROCEEDINGS UNDER CERTAIN CIRCUMSTANCES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. 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, after a hearing, a court determines that a defendant is not competent to proceed in a criminal case and the court does not find that the defendant is dangerous, the court may dismiss the criminal case without prejudice in the interests of justice. Upon dismissal, the court [may] shall advise the district attorney to consider initiation of proceedings under the Mental Health and Developmental Disabilities Code and may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code; provided that if the criminal charge against the defendant is a serious violent offense as defined in Section 33-2-34 NMSA 1978 or a felony that involved the use of a firearm or the defendant was previously found incompetent to stand trial by the court two or more times within a one-year period, the district attorney shall initiate proceedings under the Mental Health and Developmental Disabilities Code and the court shall order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code.

          B. When a district 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 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. A court shall hold a hearing within seventy-two hours after the return of the defendant to the local facilities of the court. The defendant [so] committed for treatment to attain competency to proceed in a criminal case shall be provided with treatment available to involuntarily committed persons, 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. 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] the secretary's 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 determines that the department of health does not have the ability to meet the medical needs of a defendant ordered committed to a facility, the secretary or [his] the secretary's designee may refuse admission to 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 must 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 [his] the secretary's designee. Within ten days of filing of the certification, the court [shall conduct] may order a hearing to consider assisted outpatient treatment and 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. A finding of dangerousness need not be based on a psychological evaluation or on expert testimony.

          E. Within thirty days of an incompetent defendant's admission to a facility to undergo treatment to attain competency to proceed in a criminal case, the person supervising the defendant's treatment shall file with the district court, the state and the defense an initial assessment and treatment plan and a report on the defendant's amenability to treatment to render [him] the defendant competent to proceed in a criminal case, an assessment of the facility's or program's capacity to provide appropriate treatment for the defendant and an opinion as to the probability of the defendant's attaining competency within a period of nine months from the date of the original finding of incompetency to proceed in a criminal case.

          F. Upon dismissal of a criminal case pursuant to this section, the city or county attorney or any other person authorized by law may request that the district attorney initiate proceedings under the Mental Health and Developmental Disabilities Code. The person making the request to the district attorney may present any medical report or other evidence in order to make a petition but is not required to produce any particular evidence or report in order to make a petition. The district attorney shall act on the request within seventy-two hours. If the district attorney determines that reasonable grounds exist to commit the person, the district attorney shall initiate proceedings for civil commitment pursuant to the Mental Health and Developmental Disabilities Code. Notwithstanding a referral from the court, the city or county attorney or any other person authorized by law, the district attorney shall file a petition with the court under the Mental Health and Developmental Disabilities Code requesting that the court initiate civil commitment proceedings if any of the initial charges were a serious violent offense as defined in Section 33-2-34 NMSA 1978 or a felony that involved the use of a firearm or the person was previously found incompetent to stand trial by the court two or more times within a one-year period."

     SECTION 2. 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] shall:

          A. hear the matter pursuant to 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; or

          [B. release the defendant from custody and dismiss with prejudice the charges against him; or

          C.] B. dismiss the criminal case without prejudice in the interest of justice. If the treatment supervisor has issued a report finding that the defendant satisfies the criteria for involuntary commitment contained in the Mental Health and Developmental Disabilities Code, the department of health shall commence proceedings pursuant to [Chapter 43, Article 1 NMSA 1978, and] the Mental Health and Developmental Disabilities Code, the court [may] shall order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to [the Mental Health and Developmental Disabilities] that code, and the local district attorney shall file a petition in the district court for involuntary civil commitment under that 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.]"

     SECTION 3. Section 43-1-10 NMSA 1978 (being Laws 1977, Chapter 279, Section 9, as amended) is amended to read:

     "43-1-10. EMERGENCY MENTAL HEALTH EVALUATION AND

CARE.--

          A. A peace officer may detain and transport a person for emergency mental health evaluation and care in the absence of a legally valid order from the court only if:

                (1) the person is otherwise subject to lawful arrest;

                (2) the peace officer has reasonable grounds to believe the person has just attempted suicide;

                (3) the peace officer, based upon the peace officer's own observation and investigation, has reasonable grounds to believe that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Immediately upon arrival at the evaluation facility, the peace officer shall be interviewed by the admitting physician or the admitting physician's designee; or

                (4) a physician, a psychologist or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency has certified that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Such certification shall constitute authority to transport the person.

          B. An emergency evaluation under this section shall be accomplished upon the request of a peace officer or jail or detention facility administrator or that person's designee or upon the certification of a physician, a psychologist or a qualified mental health professional licensed for independent practice who is affiliated with a community mental health center or core service agency. A court order is not required under this section. If an application is made to a court, the court's power to act in furtherance of an emergency admission shall be limited to ordering [that]:

                (1) that the client be seen by a certified psychologist or psychiatrist prior to transport to an evaluation facility; [and]

                (2) that a peace officer transport the person to an evaluation facility; or

                (3) assisted outpatient treatment with a qualified health care provider upon a finding by the evaluation facility that the person is not suitable for an emergency-based admission to the evaluation facility.

          C. An evaluation facility may accept for an emergency-based admission any person when a physician or certified psychologist certifies that such person, as a result of a mental disorder, presents a likelihood of serious harm to himself or herself or to others and that immediate detention is necessary to prevent such harm. Such certification shall constitute authority to transport the person.

          D. A person detained under this section shall, whenever possible, be taken immediately to an evaluation facility. Detention facilities shall be used as temporary shelter for such persons only in cases of extreme emergency for protective custody, and no person taken into custody under the provisions of the code shall remain in a detention facility longer than necessary and in no case longer than twenty-four hours. If use of a detention facility is necessary, the proposed client:

                (1) shall not be held in a cell with prisoners;

                (2) shall not be identified on records used to record custody of prisoners;

                (3) shall be provided adequate protection from possible suicide attempts; and

                (4) shall be treated with the respect and dignity due every citizen who is neither accused nor convicted of a crime.

          E. The admitting physician or certified psychologist shall evaluate whether reasonable grounds exist to detain the proposed client for evaluation and treatment, and, if reasonable grounds are found, the proposed client shall be detained. If the admitting physician or certified psychologist determines that reasonable grounds do not exist to detain the proposed client for evaluation and treatment, the proposed client shall not be detained.

          F. Upon arrival at an evaluation facility, the proposed client shall be informed orally and in writing by the evaluation facility of the purpose and possible consequences of the proceedings, the right to a hearing within seven days, the right to counsel and the right to communicate with an attorney and a mental health professional of the proposed client's own choosing and shall have the right to receive necessary and appropriate treatment.

          G. A peace officer who transports a proposed client to an evaluation facility under the provisions of this section shall not require a court order to be reimbursed by the referring county."

     SECTION 4. Section 43-1-11 NMSA 1978 (being Laws 1977, Chapter 279, Section 10, as amended) is amended to read:

     "43-1-11. COMMITMENT OF ADULTS FOR THIRTY-DAY PERIOD.--

          A. Every adult client involuntarily admitted to an evaluation facility pursuant to Section 43-1-10 NMSA 1978 has the right to a hearing within seven days of admission unless waived after consultation with counsel. If a physician or evaluation facility decides to seek commitment of the client for evaluation and treatment, a petition shall be filed with the court within five days of admission requesting the commitment. The petition shall include a description of the specific behavior or symptoms of the client that evidence a likelihood of serious harm to the client or others and shall include an initial screening report by the evaluating physician individually or with the assistance of a mental health professional or, if a physician is not available, by a mental health professional acceptable to the court. The petition shall list the prospective witnesses for commitment and a s