45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO CRIMINAL PROCEDURE; REVISING CRITERIA REGARDING DISPOSITION OF A CRIMINAL DEFENDANT WHO IS MENTALLY RETARDED.

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

Section 1. 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 MENTAL RETARDATION.--

A. Upon motion of the defense requesting a ruling, the district court shall hold a hearing to determine whether the defendant has mental retardation as defined in Subsection [E] C of this section.

B. If the district court finds by a preponderance of the evidence that the defendant has mental retardation; [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 his 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 himself or a likelihood of serious harm to others.

C. If the department of health evaluation results in a finding that the defendant presents a likelihood of serious harm to himself or a likelihood of serious harm to others, within sixty days of the department's evaluation the department shall commence proceedings pursuant to Chapter 43, Article 1 NMSA 1978 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 or upon expiration of fourteen months from the court's initial determination that the defendant is incompetent to proceed in a criminal case] finds by clear and convincing evidence that the defendant committed murder in the first degree, first degree criminal sexual penetration, criminal sexual contact of a minor or arson; finds that the defendant is incompetent to proceed in a criminal case; and finds that the defendant remains dangerous to himself or others:

(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 that committed him 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) the department of health shall report in writing to the district court, the prosecuting attorney and the defendant's attorney regarding significant changes in the defendant's condition, including competency to stand trial and dangerousness; and

(4) at least every two years, the district court shall conduct a hearing upon notice to the prosecuting attorney, the defendant's attorney and the department of health. 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 district court shall continue with the criminal proceeding;

(b) if the defendant continues to be incompetent to proceed in a criminal case and dangerous, the district 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 been convicted in a criminal proceeding; and

(c) if the court finds upon its two-year review hearing that the defendant is no longer dangerous, the defendant shall be released.

[E.] C. As used in this section, "mental retardation" 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 mental retardation."

Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.