Key Information

Relevant Statutes and Rules

W. Va. Code Ann. § 27-6A-1 through -3.

What proceedings can occur while the defendant is incompetent

None stated.

Number of examiners required

1

W. Va. Code Ann. § 27-6A-2(a) (West)

Qualifications of examiners

"(5) A “qualified forensic evaluator” is either a qualified forensic psychiatrist or a qualified forensic psychologist as defined in this section.
(6) A “qualified forensic psychiatrist” is:
(A) A psychiatrist licensed under the laws in this state to practice medicine who has completed post-graduate education in psychiatry in a program accredited by the Accreditation Council of Graduate Medical Education; and
(B) Board-eligible or board-certified in forensic psychiatry by the American Board of Psychiatry and Neurology or actively enrolled in good standing in a West Virginia training program accredited by the Accreditation Council of Graduate Medical Education to make the evaluator eligible for board certification by the American Board of Psychiatry and Neurology in forensic psychiatry or has two years of experience in completing court-ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.
(7) A “qualified forensic psychologist” is:
(A) A licensed psychologist licensed under the laws of this state to practice psychology; and
(B) Board-eligible or board-certified in forensic psychology by the American Board of Professional Psychology or actively enrolled in good standing in a West Virginia training program approved by the American Board of Forensic Psychology to make the evaluator eligible for board certification in forensic psychology or has at least two years of experience in performing court-ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.
(b)(A)1 qualified forensic evaluator may not perform a forensic evaluation on an individual under § 27-1-1 et seq. of this code if the qualified forensic evaluator has been the individual’s treating psychologist or psychiatrist within one year prior to any evaluation order."

W. Va. Code Ann. § 27-6A-1 (West)

What must the evaluation report contain

"The report shall address:
(1) The forensic evaluator's opinion on the defendant's competency to stand trial;
(2) A diagnosis, if any;
(3) A proposed plan for competency attainment if appropriate; and
(4) An opinion as to whether the individual is dangerous to himself, herself, or others."

W. Va. Code Ann. § 27-6A-2(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

Outpatient or inpatient (if the attainment of competency requires inpatient management).

W. Va. Code Ann. § 27-6A-3(d) (West)

What is the test for restorability

"not substantially likely to attain competency in the foreseeable future"

W. Va. Code Ann. § 27-6A-3(g)(2) (West)

What is the procedure after restoration

None stated.

What is the procedure if there is a finding of unrestorability

"the defendant shall be released to the least restrictive setting upon any conditions the court determines to be appropriate and the charges against him or her held in abeyance for the maximum sentence he or she could have received for the offense and the defendant released unless civil commitment proceedings have been initiated"

W. Va. Code Ann. § 27-6A-3(g)(2) (West)

Misdemeanors or non-violent felonies: "the defendant shall be released upon any conditions that the court determines to be appropriate and shall have the criminal charges dismissed without prejudice. The discharge order may, however, be stayed for 20 days to allow civil commitment proceedings to be instituted by the prosecutor pursuant to § 27-5-1 et seq. of this code. The defendant shall be immediately released from any inpatient facility unless civilly committed."

W. Va. Code Ann. § 27-6A-3(e) (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

Misdemeanors or non-violent felonies: "the defendant shall be released upon any conditions that the court determines to be appropriate and shall have the criminal charges dismissed without prejudice. The discharge order may, however, be stayed for 20 days to allow civil commitment proceedings to be instituted by the prosecutor pursuant to § 27-5-1 et seq. of this code. The defendant shall be immediately released from any inpatient facility unless civilly committed."

W. Va. Code Ann. § 27-6A-3(f), (g)(1) (West)

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

"Notwithstanding any finding of incompetence to stand trial under the provisions of this article, the court of record may at any stage of the criminal proceedings allow a defendant to be released with or without bail."

W. Va. Code Ann. § 27-6A-7 (West)

Time limits on treatment

Misdemeanors or non-violent felony: 240 days.

W. Va. Code Ann. § 27-6A-3(f), (g)(1) (West)