Key Information

Relevant Statutes and Rules

Wash. Rev. Code Ann. § 10.77.010 et seq.

What proceedings can occur while the defendant is incompetent

"The fact that the defendant is unfit to proceed does not preclude any pretrial proceedings which do not require the personal participation of the defendant."

Wash. Rev. Code Ann. § 10.77.084(e)(3) (West)

Number of examiners required

1

Wash. Rev. Code Ann. § 10.77.060(1)(b)(i) (West)

Qualifications of examiners

"qualified expert or professional person"

Wash. Rev. Code Ann. § 10.77.060(1)(b)(i) (West)

(22) “Professional person” means:
(a) A psychiatrist licensed as a physician and surgeon in this state who has, in addition, completed three years of graduate training in psychiatry in a program approved by the American medical association or the American osteopathic association and is certified or eligible to be certified by the American board of psychiatry and neurology or the American osteopathic board of neurology and psychiatry;
(b) A psychologist licensed as a psychologist pursuant to chapter 18.83 RCW;
(c) A psychiatric advanced registered nurse practitioner, as defined in RCW 71.05.020; or
(d) A social worker with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.

Wash. Rev. Code Ann. § 10.77.010(22) (West)

What must the evaluation report contain

(3) The report of the evaluation shall include the following:
(a) A description of the nature of the evaluation;
(b) A diagnosis or description of the current mental status of the defendant;
(c) If the defendant has a mental disease or defect, or has a developmental disability, an opinion as to competency;
(d) If the defendant has indicated his or her intention to rely on the defense of insanity pursuant to RCW 10.77.030, and an evaluation and report by an expert or professional person has been provided concluding that the defendant was criminally insane at the time of the alleged offense, an opinion as to the defendant's sanity at the time of the act, and an opinion as to whether the defendant presents a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, provided that no opinion shall be rendered under this subsection (3)(d) unless the evaluator or court determines that the defendant is competent to stand trial;
(e) When directed by the court, if an evaluation and report by an expert or professional person has been provided concluding that the defendant lacked the capacity at the time of the offense to form the mental state necessary to commit the charged offense, an opinion as to the capacity of the defendant to have a particular state of mind which is an element of the offense charged;
(f) An opinion as to whether the defendant should be evaluated by a designated crisis responder under chapter 71.05 RCW.

Wash. Rev. Code Ann. § 10.77.060(3) (West)

Are low-level offenses excluded from restoration

(1) If the issue of competency to stand trial is raised by the court or a party under RCW 10.77.060, the prosecutor may continue with the competency process or dismiss the charges without prejudice and refer the defendant for assessment by a mental health professional, substance use disorder professional, co-occurring disorder specialist, or developmental disabilities professional to determine the appropriate service needs for the defendant.
(2) This section does not apply to defendants with a current charge or prior conviction for a violent offense or sex offense as defined in RCW 9.94A.030, or a violation of RCW 9A.36.031(1) (d), (f), or (h).

Wash. Rev. Code Ann. § 10.77.079 (West)

"(7) If the defendant is charged with a nonfelony crime that is not a serious offense as defined in RCW 10.77.092 and found by the court to be not competent, the court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the designated crisis responder to evaluate the defendant and consider initial detention proceedings under chapter 71.05 RCW."

Wash. Rev. Code Ann. § 10.77.088 (West)

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

1) In counties with a forensic navigator program, a forensic navigator shall:
(a) Meet, interview, and observe all defendants charged with a nonfelony, or a class C felony other than assault in the third degree under RCW 9A.36.031(1) (d) or (f), felony physical control of a vehicle under RCW 46.61.504(6), felony hit and run resulting in injury under RCW 46.52.020(4)(b), a hate crime offense under RCW 9A.36.080, a class C felony with a domestic violence designation, a class C felony sex offense as defined in RCW 9.94A.030, or a class C felony with a sexual motivation allegation, who have had two or more cases dismissed due to a finding of incompetency to stand trial in the preceding 24 months and who are at risk for a finding of incompetency under their current charge. The forensic navigator shall determine the defendants' willingness to engage with services under this section; and
(b) Provide a diversion program plan to the parties in each case that includes a recommendation for a diversion program to defense counsel and the prosecuting attorney. Services under a diversion program may include a referral for assisted outpatient treatment under chapter 71.05 RCW.
(2) The court shall dismiss the criminal charges upon agreement of the parties that the defendant has been accepted into the diversion program recommended by the forensic navigator.
(3)(a) For defendants charged with a nonfelony, the court may order the defendant to a diversion program if recommended by the forensic navigator. Upon engagement with the diversion program, the defense may move to dismiss the charges without prejudice. The court shall hold a hearing on this motion within 10 days. The court shall grant the defense motion if it finds by a preponderance of the evidence that the defendant is amenable to the services described in the diversion program and can safely receive services in the community.
(b) For defendants charged with a class C felony other than assault in the third degree under RCW 9A.36.031(1) (d) or (f), felony physical control of a vehicle under RCW 46.61.504(6), felony hit and run resulting in injury under RCW 46.52.020(4)(b), a hate crime offense under RCW 9A.36.080, a class C felony with a domestic violence designation, a class C felony sex offense as defined in RCW 9.94A.030, or a class C felony with a sexual motivation allegation, the defense may move for dismissal of the charges without prejudice if the defendant is currently subject to a civil commitment order under chapter 71.05 RCW. The court shall grant the defense motion upon confirmation of an available treatment plan under chapter 71.05 RCW.
(4) Individuals who are referred to a diversion program described in this section shall have a forensic navigator assigned to assist them for up to six months while engaging in the services described in the diversion program.

Wash. Rev. Code Ann. § 10.77.072 (West)

For misdemeanors and low-level felonies: "The court shall dismiss the proceedings without prejudice upon agreement of the parties if the forensic navigator has found an appropriate and available diversion program willing to accept the defendant."

Wash. Rev. Code Ann. § 10.77.086(b) (West)

What are the locations for restoration services

Felony: inpatient unless ordered to receive outpatient restoration based on a recommendation from a forensic navigator and input from the parties.

Wash. Rev. Code Ann. § 10.77.086(1)(a) (West)

Minor felony: "the court shall first consider all available and appropriate alternatives to inpatient competency restoration. The court shall dismiss the proceedings without prejudice upon agreement of the parties if the forensic navigator has found an appropriate and available diversion program willing to accept the defendant."

Wash. Rev. Code Ann. § 10.77.086(1)(b) (West)

Misdemeanor: "the court shall first consider all available and appropriate alternatives to inpatient competency restoration. If the parties agree that there is an appropriate diversion program available to accept the defendant, the court shall dismiss the proceedings without prejudice and refer the defendant to the recommended diversion program. If the parties do not agree that there is an appropriate diversion program available to accept the defendant, then the court:
(a) Shall dismiss the proceedings without prejudice and detain the defendant pursuant to subsection (6) of this section, unless the prosecutor objects to the dismissal and provides notice of a motion for an order for competency restoration treatment, in which case the court shall schedule a hearing within seven days.
(b) At the hearing, the prosecuting attorney must establish that there is a compelling state interest to order competency restoration treatment for the defendant. The court may consider prior criminal history, prior history in treatment, prior history of violence, the quality and severity of the pending charges, any history that suggests whether competency restoration treatment is likely to be successful, in addition to the factors listed under RCW 10.77.092."

If compelling state interest is found, restoration shall be outpatient, unless the court finds that an order for outpatient competency restoration is inappropriate considering the health and safety of the defendant and risks to public safety.

Wash. Rev. Code Ann. § 10.77.088 (West)

(2)(a) To be eligible for an order for outpatient competency restoration, a defendant must be clinically appropriate and be willing to:
(i) Adhere to medications or receive prescribed intramuscular medication;
(ii) Abstain from alcohol and unprescribed drugs; and
(iii) Comply with urinalysis or breathalyzer monitoring if needed.

Wash. Rev. Code Ann. § 10.77.086 (West)

What is the test for restorability

"a defendant is not likely to regain competency"

Wash. Rev. Code Ann. § 10.77.084(d) (West)

What is the procedure after restoration

"Any facility providing inpatient services related to competency shall discharge the defendant as soon as the facility determines that the defendant is competent to stand trial. Discharge shall not be postponed during the writing and distribution of the evaluation report. Distribution of an evaluation report by a facility providing inpatient services shall ordinarily be accomplished within two working days or less following the final evaluation of the defendant. If the defendant is discharged to the custody of a local correctional facility, the local correctional facility must continue the medication regimen prescribed by the facility, when clinically appropriate, unless the defendant refuses to cooperate with medication and an involuntary medication order by the court has not been entered."

Wash. Rev. Code Ann. § 10.77.065 (West)

What is the procedure if there is a finding of unrestorability

"the court shall dismiss the proceedings without prejudice and refer the defendant for civil commitment evaluation or proceedings if appropriate . . . ."

Wash. Rev. Code Ann. § 10.77.084(d) (West)

"the court may dismiss the charges without prejudice without ordering the defendant to undergo an initial or further period of competency restoration treatment, in which case the court shall order that the defendant be referred for evaluation for civil commitment"

Wash. Rev. Code Ann. § 10.77.086 (West)

6)(a) If the proceedings are dismissed under RCW 10.77.084 and the defendant was on conditional release at the time of dismissal, the court shall order the designated crisis responder within that county to evaluate the defendant pursuant to chapter 71.05 RCW. The evaluation may be conducted in any location chosen by the professional.
(b) If the defendant was in custody and not on conditional release at the time of dismissal, the defendant shall be detained and sent to an evaluation and treatment facility for up to 120 hours if the defendant has not undergone competency restoration services or has engaged in outpatient competency restoration services and up to 72 hours if the defendant engaged in inpatient competency restoration services, excluding Saturdays, Sundays, and holidays, for evaluation for purposes of filing a petition under chapter 71.05 RCW.

Wash. Rev. Code Ann. § 10.77.088(6) (West)

What are the time limits on initial transfer to restoration services

For transfer to inpatient facility from pretrial detention: "seven days as measured from the department's receipt of the court order, or a maximum time limit of 14 days as measured from signature of the court order, whichever is shorter"

§ 10.77.068

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

Re: treatment time: ""the court shall dismiss the charges without prejudice and order the defendant to be committed to the department for placement in a facility operated or contracted by the department. . . for evaluation for the purpose of filing a civil commitment petition. . . ."

Wash. Rev. Code Ann. § 10.77.086(7) (West)

Re: transfer time: "This section does not create any new entitlement or cause of action related to the timeliness of competency to stand trial services, nor can it form the basis for contempt sanctions under chapter 7.21 RCW or a motion to dismiss criminal charges."

Wash. Rev. Code Ann. § 10.77.068 (West)

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

"When a defendant is ordered to be evaluated under this subsection (1), or when a party or the court determines at first appearance that an order for evaluation under this subsection will be requested or ordered if charges are pursued, the court may delay granting bail until the defendant has been evaluated for competency or sanity and appears before the court. Following the evaluation, in determining bail the court shall consider: (i) Recommendations of the evaluator regarding the defendant's competency, sanity, or diminished capacity; (ii) whether the defendant has a recent history of one or more violent acts; (iii) whether the defendant has previously been acquitted by reason of insanity or found incompetent; (iv) whether it is reasonably likely the defendant will fail to appear for a future court hearing; and (v) whether the defendant is a threat to public safety."

Wash. Rev. Code Ann. § 10.77.060(1)(g) (West)

Time limits on treatment

Misdemeanor: 29 days inpatient, 90 days outpatient. 

Wash. Rev. Code Ann. § 10.77.088(3) (West)

Low-level felony: 45 days inpatient, 90 days outpatient.

Wash. Rev. Code Ann. § 10.77.086(3) (West)

All felonies: 90 days.

Wash. Rev. Code Ann. § 10.77.086.