Key Information

Relevant Statutes and Rules

Va. Code Ann. §§ 19.2-167 through 19.2-169.4

What proceedings can occur while the defendant is incompetent

"A finding of incompetency does not preclude the adjudication, at any time before trial, of a motion objecting to the sufficiency of the indictment, nor does it preclude the adjudication of similar legal objections which, in the court's opinion, may be undertaken without the personal participation of the defendant."

Va. Code Ann. § 19.2-169.4 (West)

Number of examiners required

1

Va. Code Ann. § 19.2-169.1(A) (West)

Qualifications of examiners

"psychiatrist or clinical psychologist who (i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner."

Va. Code Ann. § 19.2-169.1(A) (West)

What must the evaluation report contain

"the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant's capacity to understand the proceedings against him; (ii) the defendant's ability to assist his attorney; (iii) the defendant's need for treatment in the event he is found incompetent but restorable or incompetent for the foreseeable future; and (iv) if the defendant has been charged with a misdemeanor violation of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128, whether the defendant should be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809 in the event he is found incompetent but restorable or incompetent for the foreseeable future.
If a need for restoration treatment is identified pursuant to clause (iii), the report shall state whether inpatient or outpatient treatment (community-based or jail-based) is recommended."

Va. Code Ann. § 19.2-169.1(D) (West)

Are low-level offenses excluded from restoration

None stated.

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

None stated.

What are the locations for restoration services

"the court shall order that the defendant receive treatment to restore his competency on an outpatient basis or, if the court specifically finds that the defendant requires inpatient hospital treatment, at a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for treatment of persons under criminal charge. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority."

Va. Code Ann. § 19.2-169.2(A) (West)

What is the test for restorability

"defendant is incompetent and is likely to remain so for the foreseeable future"

Va. Code Ann. § 19.2-169.3(A) (West)

What is the procedure after restoration

If, at any time after the defendant is ordered to undergo treatment under subsection A, the director of the community services board or behavioral health authority or his designee or the director of the treating inpatient facility or his designee believes the defendant's competency is restored, the director or his designee shall immediately send a report to the court as prescribed in subsection D of § 19.2-169.1. The court shall make a ruling on the defendant's competency according to the procedures specified in subsection E of § 19.2-169.1. [Subsection D requires report be completed "promptly"; Subsection E requires any hearing be held "promptly."]

Va. Code Ann. § 19.2-169.2(B) (West)

What is the procedure if there is a finding of unrestorability

"[The court] shall order that [defendant] be (i) released, (ii) committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, or (iii) certified pursuant to § 37.2-806. However, if the court finds that the defendant is incompetent and is likely to remain so for the foreseeable future and the defendant has been charged with a sexually violent offense, as defined in § 37.2-900, he shall be screened pursuant to the procedures set forth in §§ 37.2-903 and 37.2-904."

Va. Code Ann. § 19.2-169.3(A) (West)

"Unless an incompetent defendant is charged with aggravated murder or the charges against an incompetent criminal defendant have been previously dismissed, charges against an unrestorably incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner."

Va. Code Ann. § 19.2-169.3(D) (West)

"In any case when an incompetent defendant is charged with aggravated murder and has been determined to be unrestorably incompetent, notwithstanding any other provision of this section, the charge shall not be dismissed and the court having jurisdiction over the aggravated murder case may order that the defendant receive continued treatment under subsection A of § 19.2-169.2 in a secure facility determined by the Commissioner of the Department of Behavioral Health and Developmental Services where the defendant shall remain until further order of the court, provided that (i) a hearing pursuant to subsection E of § 19.2-169.1 is held at yearly intervals for five years and at biennial intervals thereafter, or at any time that the director of the treating facility or his designee submits a competency report to the court in accordance with subsection D of § 19.2-169.1 that the defendant's competency has been restored, (ii) the defendant remains incompetent, (iii) the court finds continued treatment to be medically appropriate, and (iv) the defendant presents a danger to himself or others. No unrestorably incompetent defendant charged with aggravated murder shall be released except pursuant to a court order."

Va. Code Ann. § 19.2-169.3(F) (West)

What are the time limits on initial transfer to restoration services

Inpatient: 10 days.

Va. Code Ann. § 19.2-169.2(A) (West)

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

Certain misdemeanors: if the court determines that the defendant is still incompetent, the court shall order that the defendant be released, committed, or certified, and may dismiss the charges against the defendant.

Va. Code Ann. § 19.2-169.3(C) (West)

Crimes other than aggravated murder: charges dismissed.

Va. Code Ann. § 19.2-169.3(D) (West)

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

None stated.

Time limits on treatment

Certain misdemeanors: 45 days.

Va. Code Ann. § 19.2-169.3(C) (West)

Crimes other than aggravated murder: Lesser of maximum sentence for the crime charged or five years from the date of arrest.

Va. Code Ann. § 19.2-169.3(D) (West)