§ 31-9-1.5 — Determination of competency; criminal commitment;

New Mexico § 31-9-1.5

• Jurisdiction: New Mexico
• Ch. 31: Criminal Procedure
• Art. 9: Mental Illness and Competency

Text

evidentiary hearing. A. If the court determines that there is not a substantial probability that a defendant who is not competent to stand trial will be restored to competency, a commitment hearing to determine the sufficiency of the evidence of the defendant's guilt shall be held if the defendant is charged with: (1) murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978; (2) a felony involving infliction of great bodily harm, as defined in Section 30- 1-12 NMSA 1978, on another person; (3) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; (4) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978; (5) abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978; (6) a crime provided for in the Sexual Exploitation of Children Act [Chapter 30, Article 6A NMSA 1978]; (7) human trafficking, as provided in Section 30-52-1 NMSA 1978; (8) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or (9) 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. A criminal commitment 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. C. If the evidence does not establish by clear and convincing evidence that the defendant committed the crime charged, the district court shall dismiss the criminal case with prejudice. D. If the district court finds by clear and convincing evidence that the defendant committed the crime charged and has not made a finding of dangerousness in accordance with Section 31-9-1.2 NMSA 1978, the district court shall dismiss the criminal case without prejudice. E. If the district court finds by clear and convincing evidence that the defendant committed the crime charged and enters a finding that the defendant remains not competent to stand trial and remains dangerous as determined by the court in accordance with 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 court that committed 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 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 remain not competent to stand trial and dangerous in accordance with 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 the defendant 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. F. At any time, including after a court dismisses a case against a defendant, the department of health or the district attorney may initiate involuntary commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code [Chapter 43, Article 1 NMSA 1978] or proceedings in accordance with the Assisted Outpatient Treatment Act [43-1B-1 to 43-1B-14 NMSA 1978]. If the district attorney indicates an intent to initiate involuntary commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code, the court may detain the defendant for a maximum of seven days only to facilitate the initiation of those proceedings at any licensed psychiatric hospital.

Legislative History

1978 Comp., § 31-9-1.5, enacted by Laws 1988, ch. 107, § 6 and by 1988, ch.