New Mexico Statutes
Article 9 - Mental Illness and Competency
Section 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 [43-1-1 NMSA 1978] and 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. 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; 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.
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 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 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 designee. Within ten days of filing of the certification the court shall conduct a hearing 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.
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 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.
History: 1978 Comp., § 31-9-1.2, enacted by Laws 1988, ch. 107, § 3 and by Laws 1988, ch. 108, § 3; 1993, ch. 240, § 3; 1993, ch. 249, § 3; 1999, ch. 149, § 1.
Cross references. — For rule of criminal procedure governing defenses of insanity, incompetency, and lack of capacity, see Rule 5-602 NMRA.
The 1999 amendment, effective June 18, 1999, added "and order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code" at the end of Subsection A; in Subsection B, inserted "charged with a felony" following "a defendant", substituted "proceed in the criminal case" for "stand trial", substituted "commit the defendant as provided in this section for" for "order", and deleted "for a period not to exceed one year" following "in a criminal case" in the first sentence; added Subsection C and redesignated the remaining subsections accordingly; and substituted "nine months" for "one year" in Subsection E.
The 1993 amendment, effective June 18, 1993, rewrote the section to the extent that a detailed comparison was impracticable. This section was also amended by Laws 1993, ch. 240, § 3, effective June 18, 1993. The section was set out as amended by Laws 1993, ch. 249, § 3. See 12-1-8 NMSA 1978.
In considering whether reasonable doubt exists, the court must keep in mind the requirement that a defendant must have sufficient present ability to consult and understand as required under due process of law. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 586, 124 P.3d 564.
Defense counsel's observations and opinions. — A court may consider defense counsel's observations and opinions, but those observations and opinions alone cannot trigger reasonable doubts about defendant's competency. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 586, 124 P.3d 564.
Finding of dangerousness as prerequisite to detention. — In the context of the competency statutes, the finding of dangerousness is a prerequisite to the applicability of the portions of the statute allowing defendant to be detained for a longer period of time. Thus, the court must make a finding of dangerousness prior to the detention authorized by Section 31-9-1.5 NMSA 1978, but it need not have made such a finding at a prior hearing. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert. denied, 111 N.M. 77, 801 P.2d 659.

Structure New Mexico Statutes