44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CRIMINAL PROCEDURE; AMENDING PROVISIONS REGARDING INVOLUNTARY COMMITMENT OF INCOMPETENT DEFENDANTS.

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 by Laws 1993, Chapter 240, Section 3 and also by Laws 1993, Chapter 249, Section 3) is amended to read:

"31-9-1.2. DETERMINATION OF COMPETENCY--COMMITMENT--REPORT.--

A. When, after 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 advise the district attorney to consider initiation of proceedings under the Mental Health and Developmental Disabilities Code.

B. When a district court determines that a defendant is incompetent to stand trial, 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 order treatment to attain competency to proceed in a criminal case for a period not to exceed one year. The court shall enter an appropriate transport order [which] that also provides for return of the defendant to the local facilities of the court upon completion of the treatment. The defendant so committed shall be admitted, upon availability of accommodations, to a facility designated for the treatment of defendants who are incompetent to stand trial and dangerous. If there is a waiting list for entry to the facility, the administrator of the facility or his designee may determine order of admission based on clinical judgment of severity of need. If a facility does not have the ability to meet the medical needs of a defendant ordered committed to the facility, the administrator of the facility or his designee may refuse admission to the defendant upon certification in writing to the committing court of the lack of ability to meet the medical needs of the defendant. A defendant committed pursuant to this subsection 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 [which] that committed him.

C. 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.

D. 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 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 one year from the date of the original finding of incompetency to proceed in a criminal case."