SENATE BILL 16

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

INTRODUCED BY

Gerald Ortiz y Pino and Tara L. Lujan

 

 

 

 

 

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Chapter 108, Section 1, as amended by Laws 1993, Chapter 240, Section 1 and by Laws 1993, Chapter 249, Section 1) is repealed and a new Section 31-9-1 NMSA 1978 is enacted to read: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

                (1) order that the defendant be assessed for suitability to be diverted to a treatment program either by agreement of the parties or at the court's discretion if such programs are available to the jurisdiction of the referring court and available within a reasonable time; or

                (2) refer the defendant for an assessment to

determine if the defendant is a candidate for civil commitment or assisted outpatient treatment pursuant to the Assisted Outpatient Treatment Act, if agreed to by the parties.

          B. In misdemeanor cases, a defendant may be ordered to participate in a diversion to treatment program for no longer than six months. In misdemeanor cases when a defendant is diverted to treatment under this subsection, the case shall not transfer to district court.

          C. In nonviolent felony cases, the court may order, or the parties may agree, that the defendant be assessed for participation in an available diversion to treatment program for no longer than eighteen months. Upon completion of the program, a defendant's charges shall be dismissed. 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.

          D. If a defendant who has been assigned to a diversion to treatment program refuses or is unable to comply with court-ordered treatment, the court may, in the interest of justice, dismiss the charges pending against the defendant or, if the parties agree, make a referral to determine if the defendant is eligible for the civil commitment process or assisted outpatient treatment pursuant to the Assisted Outpatient Treatment Act."

     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, and the court may dismiss the criminal case without prejudice in the interest of justice or may stay the case and refer the defendant to a competency restoration program if such a program exists, is available to the referring jurisdiction and is available within a reasonable time period from the date of referral. 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:

                (1) an outpatient competency restoration program, which may be provided in person or by electronic means, 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 outpatient competency restoration. Outpatient 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 outpatient services are terminated due to a mental health condition or behavior or for any other reason. A defendant will only be eligible for outpatient 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; or

                (2) an inpatient competency restoration program, which consists of competency restoration services provided in a residential setting that provides additional treatment services and is a provider of competency restoration services authorized by the department of health or the health care authority department. If the defendant is initially committed to a state hospital or secure treatment facility or program 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 and anyone else authorized by law may refer for assessment to 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 program. The defendant so committed 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 until completion of treatment, and appropriate communication shall be provided with all parties listed in this subsection;

                (2) upon the defendant's completion of treatment 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 competency restoration treatment, the treatment supervisor 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 the defendant competent to proceed in a criminal case or to proceed with diversion, if available; an assessment of the facility's capacity to provide appropriate treatment 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 undergo treatment, 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 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:

          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;

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

          C. 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] that 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 [the Mental Health and Developmental Disabilities] that code. The district court, the department of health, the state, the family or the health care provider may refer the defendant to the district attorney for [possible initiation of proceedings under the Mental Health and Developmental Disabilities code] an assessment of whether the defendant is eligible for civil commitment."

     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--EVIDENTIARY HEARING.--

          A. As provided for in Subsection A of Section

31-9-1.4 NMSA 1978, a hearing to determine the sufficiency of the evidence 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 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 transcripts taken by official reporters, district court and business records and public documents.

          B. 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 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. If the district court finds by clear and convincing evidence that the defendant committed a crime and has not made a finding of dangerousness, pursuant to Section 31-9-1.2 NMSA 1978, the district court shall dismiss the charges 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 of a petition pursuant to that code.

          D. 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 and enters a finding that the defendant remains incompetent to proceed and remains dangerous pursuant to 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 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 and dangerous pursuant to 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 with a treatment plan and case management services in place."

     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 a developmental or intellectual disability as defined in [Subsection E of this] Section 31-9-1.7 NMSA 1978.

          B. If the court finds by a preponderance of the evidence that the defendant has 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 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 determine whether the defendant presents a likelihood of serious harm to self or others.

          C. If the department of health evaluation results in a finding 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] the Mental Health and Developmental Disabilities Code if the defendant was charged with murder in the first degree, first degree criminal sexual penetration, criminal 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.

          D. The criminal charges shall be dismissed without prejudice after the hearing pursuant to [Chapter 43, Article 1 NMSA 1978] the Mental Health and Developmental Disabilities Code or upon expiration of fourteen months from the court's initial determination that the defendant is incompetent to proceed in a criminal case.

          [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. A new Section 31-9-1.7 NMSA 1978 is enacted to read:

     "31-9-1.7. [NEW MATERIAL] DEFINITIONS.--As used in Chapter 31, Article 9 NMSA 1978:

          A. "competency restoration program" means the process of administering treatment and education related to the judicial process, capacity to consult with an attorney, factual and rational components of standing trial, ability to assist in one's own defense and capacity to comprehend the reason for punishment. A "competency restoration program" may or may not be accompanied by additional treatment such as psychotropic medication, psychotherapy or addiction services;

          B. "dangerous" means that, if released, the defendant presents a serious threat of inflicting great bodily harm on the defendant's self, another person or the community or of violating Section 30-9-11 or 30-9-13 NMSA 1978;

          C. "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;

          D. "discharge plan" means a written document outlining the steps to be taken after discharge;

          E. "diversion to treatment program" means diversion from the legal system directly to mental health or substance abuse treatment in the community with additional supportive structures such as case management;

          F. "medical needs" means physical medical issues that require additional medical equipment or expertise to adequately treat;

          G. "nonviolent felony" means someone who has not been charged with a crime consistent with a violent felony;

          H. "outpatient competency restoration" means that when a defendant is found to be incompetent, the defendant may be referred to an outpatient competency restoration program if one is available to the jurisdiction under which the defendant has been found incompetent;

          I. "provisional diagnosis" means a preliminary diagnosis consistent with presenting symptoms but that requires additional time and evaluation to provide a full diagnosis;

          J. "reasonable time" means within thirty days of referral;

          K. "treatment program" means any facility or program offering mental health, substance use or other medical treatment; and

          L. "violent felony" means one of the following enumerated felonies: murder pursuant to Section 30-2-1 NMSA 1978, manslaughter pursuant to Section 30-2-3 NMSA 1978, criminal sexual penetration pursuant to Section 30-9-11 NMSA 1978, kidnapping pursuant to Section 30-4-1 NMSA 1978 or any crime committed with the use of a deadly weapon or serious threat of inflicting great bodily harm on oneself or another."

     SECTION 9. Section 31-9-2 NMSA 1978 (being Laws 1967, Chapter 231, Section 3) is amended to read:

     "31-9-2. MENTAL EXAMINATION.--Upon motion of any defendant, the court shall order a mental examination of the defendant before making any determination of competency under [Sections 41-13-3 or 41-13-3.1 New Mexico Statutes Annotated, 1953 Compilation] Section 31-9-1 NMSA 1978. Where the defendant is determined to be indigent, the [court] state shall pay for the costs of the examination from funds available to the court."

- 21 -