A. If, after a competency hearing, a court determines that a defendant is not competent to stand trial, the court shall determine if the defendant is dangerous. A defendant who is not competent is dangerous if the court finds by clear and convincing evidence that the defendant presents a serious threat of:
(1)committing murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978;
(2)inflicting great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;
(3)committing criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;
(4)committing criminal sexual contact of a minor, as provided in Section 30-9- 13 NMSA 1978;
(5)committing abuse of a child, as provided in Subsection D of Section 30-6- 1 NMSA 1978;
(6)violating a provision of the
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A. If, after a competency hearing, a court determines that a defendant is not competent to stand trial, the court shall determine if the defendant is dangerous. A defendant who is not competent is dangerous if the court finds by clear and convincing evidence that the defendant presents a serious threat of: (1) committing murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978; (2) inflicting great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person; (3) committing criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; (4) committing criminal sexual contact of a minor, as provided in Section 30-9- 13 NMSA 1978; (5) committing abuse of a child, as provided in Subsection D of Section 30-6- 1 NMSA 1978; (6) violating a provision of the Sexual Exploitation of Children Act [Chapter 30, Article 6A NMSA 1978]; (7) committing human trafficking, as provided in Section 30-52-1 NMSA 1978; (8) committing aggravated arson, as provided in Section 30-17-6 NMSA 1978; or (9) committing any "serious violent offense" enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L [N] of Section 33-2-34 NMSA 1978 with the use of a firearm. B. If the court determines that a defendant is not dangerous, the court may order the defendant to participate in a community-based competency restoration program or dismiss the criminal case without prejudice in the interests of justice; provided that if the court dismisses the case, the court may: (1) advise the district attorney to consider the initiation of involuntary civil commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code [Chapter 43, Article 1 NMSA 1978] and may detain the defendant for a maximum of seven days to facilitate initiation of those proceedings; or (2) advise the district attorney to consider initiation of proceedings in accordance with the Assisted Outpatient Treatment Act [43-1B-1 to 43-1B-14 NMSA 1978] but may not detain the defendant for that purpose. C. A community-based competency restoration program is a court-approved program that is designed to restore a defendant to competency and provided in an outpatient setting in the community where the defendant resides. A court may order a defendant to participate in a community-based competency restoration program for no longer than ninety days, and: (1) within thirty days of the date that the defendant was ordered to participate in a community-based competency restoration program, the person supervising the defendant's competency restoration program shall submit a progress report to the court and both parties that includes: (a) an initial assessment of the defendant and a description of the competency restoration programming that will be provided to the defendant; (b) a report on the defendant's amenability to competency restoration; (c) an assessment of the program's capacity to provide appropriate programming for the defendant; and (d) an opinion as to the probability of the defendant being restored to competency within ninety days from the date that the court ordered the defendant's participation in the community-based competency restoration program; (2) no later than ninety days from the date that the court ordered the defendant to participate in a community-based competency restoration program, the court shall hold a review hearing and determine if the defendant has been restored to competency and at least seven days prior to the review hearing, the person supervising the defendant's competency restoration program shall submit a written report that includes: (a) an opinion as to whether the defendant has been restored to competency; (b) if the defendant is receiving medication, information from the prescribing physician about the type, dosage and effect of the medication on the defendant's appearance, actions and demeanor; (c) if the defendant remains not competent, an opinion as to whether the defendant satisfies the criteria for involuntary commitment in accordance with the Mental Health and Developmental Disabilities Code and whether: 1) as a result of mental disorder, the defendant presents a likelihood of serious harm to the defendant's self or others; 2) the defendant needs and is likely to benefit from involuntary commitment and treatment; and 3) the proposed commitment is consistent with the treatment needs of the defendant and with the least drastic means principle; and (d) if the defendant remains not competent, an opinion as to whether the defendant satisfies the criteria for involuntary treatment in accordance with the Assisted Outpatient Treatment Act and whether the defendant: 1) has a primary diagnosis of a mental disorder; 2) has demonstrated a history of lack of compliance with treatment for a mental disorder; 3) is unwilling or unlikely, as a result of a mental disorder, to voluntarily participate in outpatient treatment that would enable the defendant to live safely in the community without court supervision; 4) is in need of assisted outpatient treatment as the least restrictive appropriate alternative to prevent a relapse or deterioration likely to result in serious harm to the defendant's self or others; and 5) will likely benefit from assisted outpatient treatment and have the defendant's best interests served; and (3) if, after a review hearing, the court finds that the defendant is competent, the case shall proceed to trial, but if the court finds that the defendant remains not competent, the case shall be dismissed without prejudice and the court may advise the district attorney to consider initiating proceedings in accordance with the Mental Health and Developmental Disabilities Code or the Assisted Outpatient Treatment Act. D. If the court determines that a defendant who is not competent is dangerous, the district court may commit the defendant as provided in this section for competency restoration. If the court orders commitment, the court shall enter a transport order that provides for the defendant's return to the local jail within seventy-two hours upon the defendant being restored to competency, completion of the competency restoration program or as otherwise required by the court. A defendant committed for competency restoration shall be provided with treatment available to persons subject to civil commitment, and: (1) shall be detained by the department of health in a secure, locked facility; and (2) shall not be released from that facility except pursuant to an order of the court that committed the defendant. E. The department of health shall admit a defendant for competency restoration within fifteen 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. If the secretary of health or the secretary's designee determines that the department of health does not have the ability to meet the needs of the defendant, the secretary or the secretary's designee may refuse admission by providing written certification to the committing court and the parties of the department's inability to meet the needs of the defendant. The certification shall be made within seven 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 the certification, the court shall conduct a hearing for further disposition of the criminal case. F. Within thirty days of a defendant's admission to a department of health facility or an inpatient psychiatric hospital for competency restoration, the department shall file with the court, the state and the defense: (1) an initial assessment of the defendant and treatment plan; (2) a report on the defendant's amenability to competency restoration; (3) an assessment of the department's capacity to provide appropriate treatment for the defendant; and (4) an opinion as to the probability of the defendant being restored to competency within nine months from the date the court determined the defendant is not competent to stand trial.