Key Information

Relevant Statutes and Rules

N.M. Stat. § 31-9-1 et seq.; NMRA, Rule 5-602.1(B)(1).

What proceedings can occur while the defendant is incompetent

"Suspension of proceedings under this paragraph shall not affect a court's authority to set or review conditions of release . . . or to rule on a motion for pretrial detention . . . and shall not preclude further judicial action, defense motions, or discovery proceedings which may fairly be conducted without the personal participation of the defendant."

NMRA, Rule 5-602.1

Criminal commitment hearing proceedings for certain felonies: 

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.

N.M. Stat. Ann. 31-9-1.5

Number of examiners required

1

N.M. Stat. Ann. § 31-9-1.1 (West)

Qualifications of examiners

"a psychologist or psychiatrist or other qualified professional recognized by the district court as an expert"

N.M. Stat. Ann. § 31-9-1.1 (West)

What must the evaluation report contain

An evaluation report shall include a qualified professional's opinion as to whether a defendant is competent to stand trial and has:
(1) a sufficient, present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding;
(2) a rational and factual understanding of the proceedings against the defendant; and
(3) the capacity to assist in the defendant's own defense and to comprehend the reasons for punishment.
C. If, in the opinion of the qualified professional, a defendant is not competent to stand trial, an evaluation report shall include the qualified professional's opinion as to whether the defendant:
(1) satisfies the criteria for involuntary commitment in accordance with the Mental Health and Developmental Disabilities Code and whether:
(a) as a result of a mental disorder, the defendant presents a likelihood of serious harm to the defendant's self or others;
(b) the defendant needs and is likely to benefit from involuntary commitment and treatment; and
(c) the proposed commitment is consistent with the treatment needs of the defendant and with the least drastic means principle; or
(2) satisfies the criteria for involuntary treatment in accordance with the Assisted Outpatient Treatment Act and whether the defendant:
(a) has a primary diagnosis of a mental disorder;
(b) has demonstrated a history of lack of compliance with treatment for a mental disorder;
(c) is unwilling or unlikely, as a result of a mental disorder, to voluntarily participate in outpatient treatment that would enable the person to live safely in the community without court supervision;
(d) 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

N.M. Stat. Ann. § 31-9-1.1 (West)

"The report shall include the following:
(a) a description of the procedures, tests, and methods used by the evaluator;
(b) a clear statement of the evaluator's clinical findings and opinions about the defendant's competency, and if the expert's opinion is that the defendant is not competent, then the expert shall further provide an opinion as to whether the defendant satisfies the criteria for involuntary, inpatient civil commitment in accordance with the Mental Health and Developmental Disabilities Code or involuntary treatment in an Assisted Outpatient Treatment program;
(c) a description of the sources of information and the factual basis for the evaluator's clinical findings and opinions, provided that the report shall not include information or opinions concerning the defendant's mental condition at the time of the alleged crime or any statements made by the defendant regarding the alleged crime or any other crime; and
(d) the reasoning by which the evaluator used the information to reach the clinical findings and opinions."

NMRA, Rule 5-602.1

Are low-level offenses excluded from restoration

"If the defendant is not charged with a felony, the court may dismiss the case without prejudice in the interests of justice. On dismissal, the court may advise the district attorney to consider initiation of proceedings [for civil commitment]. In the alternative, the court may advise the attorneys in the matter to consider referral to an appropriate person . . . to file a petition for assisted outpatient treatment."

NMRA, Rule 5-602.2

"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"

N.M. Stat. Ann. § 31-9-1.2(b)(West)

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

Inpatient (in a secure, locked facility) if defendant is dangerous.

N.M. Stat. Ann. § 31-9-1.2(D) (West)

Community-based restoration if defendant is not dangerous.

N.M. Stat. Ann. § 31-9-1.2(B) (West)

What is the test for restorability

There is not a substantial probability that he will attain competency within nine months from the date of the court determined the defendant is not competent to stand trial.

N.M. Stat. Ann. § 31-9-1.3(E) (West)

What is the procedure after restoration

Within ninety days of the entry of the order committing an incompetent defendant to undergo treatment, the district court,  . . . shall conduct a hearing, unless waived by the defense, and shall determine:
(1) whether the defendant is competent to proceed in the criminal case

If the court finds the defendant competent, "[it] shall set the matter for trial, provided that if the defendant is in need of continued care or treatment and the supervisor of the defendant's treatment agrees to continue to provide it, the district court may order continued care or treatment of the defendant until the conclusion of the criminal proceedings."

N.M. Stat. Ann. § 31-9-1.3(C) (West)

What is the procedure if there is a finding of unrestorability

District court may:

(A) hold a criminal commitment hearing in accordance with Section 31–9–1.5 NMSA 1978. . .
(B) release the defendant from custody and dismiss the criminal case with prejudice; 
(C) dismiss the criminal case without prejudice in the interest of justice; provided that if the treatment supervisor reports to the court that the defendant satisfies the criteria for involuntary commitment in accordance with the Mental Health and Developmental Disabilities Code, the department of health shall initiate those proceedings, and the court may order the defendant confined for a maximum of seven days to facilitate the initiation of those proceedings; and provided further that the district attorney may initiate involuntary commitment proceedings in the department's stead.

N.M. Stat. Ann. § 31-9-1.4 (West)

Criminal commitment hearing proceedings for certain felonies: 

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.

N.M. Stat. Ann. § 31-9-1.5(West)
 

What are the time limits on initial transfer to restoration services

15 days if dangerous/inpatient

N.M. Stat. Ann. § 31-9-1.2(E) (West)

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

Community-based restoration: case is dismissed without prejudice.

N.M. Stat. Ann. § 31-9-1.2(C)(3) (West)

Inpatient restoration:

(A) hold a criminal commitment hearing in accordance with Section 31–9–1.5 NMSA 1978. . .
(B) release the defendant from custody and dismiss the criminal case with prejudice; 
(C) dismiss the criminal case without prejudice in the interest of justice; provided that if the treatment supervisor reports to the court that the defendant satisfies the criteria for involuntary commitment in accordance with the Mental Health and Developmental Disabilities Code, the department of health shall initiate those proceedings, and the court may order the defendant confined for a maximum of seven days to facilitate the initiation of those proceedings; and provided further that the district attorney may initiate involuntary commitment proceedings in the department's stead.

N.M. Stat. Ann. § 31-9-1.5 (West)

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

90 days if community-based restoration program.

N.M. Stat. Ann. § 31-9-1.2(C)(2), (3) (West)

Nine months if inpatient restoration.

N.M. Stat. Ann. § 31-9-1.4 (West)