1.If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed and the defendant is charged with a
class B misdemeanor, except a class B misdemeanor under chapter 12.1-17, the
proceedings must be dismissed.
2.If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed, the defendant is charged with a felony or
a class A misdemeanor, and the report as required under section 12.1-04-07 indicates
a likelihood the defendant will attain fitness within a specified period of time from the
date of the finding upon completion of a course of therapeutically appropriate
treatment, the proceedings against the defendant must be suspended for a period of
up to one hundred eighty day
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1. If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed and the defendant is charged with a
class B misdemeanor, except a class B misdemeanor under chapter 12.1-17, the
proceedings must be dismissed.
2. If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed, the defendant is charged with a felony or
a class A misdemeanor, and the report as required under section 12.1-04-07 indicates
a likelihood the defendant will attain fitness within a specified period of time from the
date of the finding upon completion of a course of therapeutically appropriate
treatment, the proceedings against the defendant must be suspended for a period of
up to one hundred eighty days. The court may extend the suspension for an additional
three hundred sixty-five days if there is medical evidence to believe the defendant's
fitness to proceed will be restored during the extended period. For a defendant
charged with a class B misdemeanor under chapter 12.1-17, the proceedings must be
suspended for a period no longer than the maximum term of imprisonment for the
most serious offense charged. When the court determines, after a hearing if a hearing
is requested, that the defendant has regained fitness to proceed, the proceeding must
be resumed. If prosecution of the defendant has not resumed or it is determined by the
court, after a hearing if a hearing is requested, that the defendant will not regain fitness
to proceed within the allotted time, the charges against the defendant must be
dismissed.
3. If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed and that the defendant will not attain
fitness to proceed, the proceedings must be dismissed. The court may at any time
make a referral for other appropriate services. Other appropriate services include:
a. Determination of incapacity, by a district court with appropriate jurisdiction
following petition by the state's attorney, for the appointment of a guardian or
conservator pursuant to chapter 30.1-28 or 30.1-29;
b. Civil commitment of the person pursuant to chapter 25-03.1; or
c. Any other services the court deems appropriate.
4. If the court determines the defendant currently lacks fitness to proceed and the
defendant may attain fitness to proceed under subsection 2, the court may enter an
order for a course of treatment considering the least restrictive form of treatment
therapeutically appropriate.
a. Unless excused by the court, in a proceeding to determine therapy in an attempt
to attain fitness, the defendant shall be represented by trial counsel.
b. If the court finds the individual is not able to retain the services of a tier 1a mental
health professional and that those services are not otherwise available, the court
shall authorize reasonable expenditures from public funds to examine the
individual.
c. In a motion hearing to resume prosecution, the state or prosecuting authority
must show by a preponderance of the evidence the defendant has attained
fitness to proceed.
5. If the court orders the defendant committed to a treatment facility in an attempt to
attain fitness to proceed under subsection 2, the court shall provide the special
custody and commitment terms in the order. The special terms of commitment must
include an order for the defendant to accept all nonexperimental, generally accepted
medical, psychiatric, or psychological treatment recommended by the treatment facility,
including the use of involuntary treatment with prescribed medication without the need
for a separate commitment under chapter 25-03.1.
a. If the order does not indicate the terms of commitment, the director or
superintendent of the treatment facility may determine the nature of the
constraints necessary within the treatment facility to carry out the order of the
court.
b. If the court orders an individual committed for therapeutic treatment to attain
fitness to proceed, the court shall set a date consistent with the timeline
established in this section for a review of the defendant's fitness to proceed. At
least sixty days before the date specified for review, the director or director's
designee or the superintendent of the treatment facility shall inquire as to whether
the individual is represented by counsel and file a written report of the facts
ascertained with the court.
6. If the parties to the action have reason to modify the special terms of the commitment
order under this section, the parties shall make a motion to the court and the court
shall determine by a preponderance of the evidence if the modification of the special
terms is necessary and the least restrictive therapeutic alternative therapy in an
attempt to attain fitness to proceed.
7. The custodian, guardian, or other person charged with the control of the defendant
may take an appeal from the court's order in the manner provided by law.