Key Information

Relevant Statutes and Rules

N.D. Cent. Code § 12.1-04-04(1); N.D. R. Crim. P. 12.3

What proceedings can occur while the defendant is incompetent

"The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution which is susceptible of fair determination prior to trial and without the personal participation of the defendant."

N.D. Cent. Code Ann. § 12.1-04-09 (West)

Number of examiners required

1

N.D. Cent. Code Ann. § 12.1-04-07(1) (West)

Qualifications of examiners

"tier 1a mental health professional"

N.D. Cent. Code Ann. § 12.1-04-07(1) (West)

Tier 1a means licensed psychiatrist or licensed psychologist.

N.D. Cent. Code Ann. § 25-01-01 (West)

What must the evaluation report contain

"The report must include:
a. The identity of the individuals interviewed and records and other information considered.
b. Procedures, tests, and techniques utilized in the assessment.
c. The date and time of the examination of the defendant, and the identity of each individual present during the examination.
d. The relevant information obtained, other information not obtained, and the defendant's responses to questions related to the defendant's fitness to proceed, except for any restricted, proprietary, copyrighted, or other information subject to trade secret protection which the examiner believes may be relevant, and the findings made.
e. An opinion as to whether the defendant is fit to proceed, is able to understand the nature or purpose of the proceedings against the defendant, is able to effectively communicate with counsel, and whether the defendant will attain fitness to proceed within the time frames set forth in section 12.1-04-08. If the examiner is unable to determine whether the defendant will attain fitness within a specified period of time, the report must include the reasoning. The report may include a general description of the type of treatment needed and of the therapeutically appropriate treatment or other appropriate treatment."

N.D. Cent. Code Ann. § 12.1-04-07(4) (West)

Are low-level offenses excluded from restoration

"[If] the defendant is charged with a class B misdemeanor, except a class B misdemeanor under chapter 12.1-17 [involving assaults, threats, or harassment], the proceedings must be dismissed."

N.D. Cent. Code Ann. § 12.1-04-08(1) (West)

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

None stated.

What are the locations for restoration services

"least restrictive form of treatment therapeutically available."

N.D. Cent. Code Ann. § 12.1-04-08(4) (West)

What is the test for restorability

"The defendant will not attain fitness to proceed"

N.D. Cent. Code Ann. § 12.1-04-08(3) (West)

What is the procedure after restoration

Not stated.

What is the procedure if there is a finding of unrestorability

Charges must be dismissed.

N.D. Cent. Code Ann. § 12.1-04-08(3) (West)

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.

N.D. Cent. Code Ann. § 12.1-04-08(3) (West)

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

Charges must be dismissed.

N.D. Cent. Code Ann. § 12.1-04-08(2) (West)

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

Not stated.

Time limits on treatment

Felony or class A misdemeanor: 180 days (can be extended for additional 365 days if there is medical evidence to believe defendant's fitness to proceed will be restored during the extended period).

N.D. Cent. Code Ann. § 12.1-04-08(2) (West)

For a defendant charged with a class B misdemeanor: maximum term of imprisonment for the most serious offense charged.

N.D. Cent. Code Ann. § 12.1-04-08(2) (West)