Competency to Proceed Evaluations And Services

The bill makes numerous changes to statutes related to the process of determination of competency to proceed in a criminal case.

Section 1 of the bill updates the definitions section of article 8.5 of title 16 to include new terminology.

Section 2 of the bill makes changes in the regulation of a second competency evaluation (evaluation) requested by the court, including reducing the time frame that the prosecution or defense may request a second evaluation from 14 days to 7 days and clarifying that the department of human services (department) is not responsible for conducting a second evaluation.

Section 3 of the bill concerns changes to competency evaluations and reports, including that:

• The court shall order the evaluation be conducted on an out-of-custody basis, unless otherwise provided. If the evaluation must be conducted on an in-custody basis, the department is required to begin the evaluation no later than 7 days after the department's receipt of a court order directing the evaluation. The department shall complete the evaluation no later than 45 days after receipt of the court order, unless for good cause shown;
• A defendant must have bond set unless they are otherwise ineligible for bond. The court shall determine the type of bond after consideration of factors. The court shall include as a condition of bond the defendant's cooperation with a competency evaluation;
• The court may order a defendant into the department's custody for purposes of an evaluation under stated circumstances;
• If the defendant is in the custody of the department, provisions for returning the defendant to the custody of the county jail or to the community are set forth;
• The competency evaluation report (report) must include:
• If the defendant is determined to be incompetent to proceed, whether or not there is a substantial probability that he or she can be restored to competency within the allowable time frame and whether inpatient or outpatient restoration services are recommended;
• If available, information on previous evaluations or restoration services provided to the defendant; and
• If the defendant meets the criteria for civil certification or is eligible for services for individuals with intellectual and developmental disabilities.
• If the report concludes that the defendant is incompetent to proceed, the department may initiate restoration services unless either party objects within 72 hours after receipt of the report;

Sections 4, 5, and 6 of the bill outline procedures to follow after a determination of competency or incompetency to proceed, including that:

• If the defendant is released on bond, a determination of whether restoration services are to be provided on an outpatient or inpatient basis. If the defendant is ordered to outpatient restoration services and he or she is uncooperative or fails to begin services, the individual agency responsible for providing restoration services shall notify the court within 28 days;
• The department is the entity responsible for the development of restoration curricula and necessary training to create outpatient restoration services in any setting;
• If the defendant remains in custody, the court shall order the department to provide restoration services at the place where the defendant is in custody and if the department has no available beds for inpatient restoration services if inpatient restoration services are recommended. The department shall begin outpatient restoration services as soon as practicable after a court's order;
• The court shall commit the defendant to the custody of the department for inpatient restoration services if the defendant has not been restored to competency within 150, unless the timeline is extended for good cause shown. The timeline must exclude time during which the defendant refuses to accept services or treatment;
• For a defendant who is receiving outpatient and in-custody restoration services, the court shall review the case every 30 days to assess the defendant's progress toward restoration to competency;
• If outpatient restoration services have been ordered and the department is unable to provide such services, the court may commit the defendant to the department's custody until outpatient services are available;
• If inpatient restoration services have been ordered, the most clinically appropriate setting must be used; and
• The bill reduces the time that either party may request a second evaluation from 14 days to 7 days after receipt of a report concerning competency. If a second evaluation is allowed, the second evaluation report must be completed and filed with the court within 42 days, as opposed to the current requirement of 63 days.

Section 7 of the bill outlines the options for reviews, civil certification (certification), provision of services for persons with intellectual and developmental disabilities (provision of services), and termination of proceedings (termination), including that:

• Time periods for review and final determinations related to certification, provision of services, and termination are established for different levels of offenses;
• In no instance may confinement exceed the maximum term of confinement that could be imposed for the most serious offense with which the defendant is charged, less any time credits the defendant is entitled to;
• At the end of any maximum amount of time, the court shall dismiss the charges and any certification proceedings or provision of services are to be governed by appropriate laws;
• The court is required to review the defendant's case at least every 3 months with regard to the probability that the defendant will eventually be restored to competency and to whether there is justification for certification or confinement. The court shall review a current evaluation report that includes information on whether there is a substantial probability the defendant will be restored to competency within the allowable time frame, and if the defendant meets the criteria for certification or the provision of services;
• If the defendant is charged with a misdemeanor, misdemeanor drug offense, or petty offense, excluding victim's rights offenses; and has been committed to the custody of the department or otherwise confined for an aggregate period of 3 months, and the court determines that he or she remains incompetent to proceed and there is not a substantial probability that he or she will be restored to competency within the next 3 months, the court shall dismiss the charges against the defendant. If the court determines there is a substantial probability that the defendant will be restored to competency within the next 3 months, restoration services may continue for another 3 months. After 6 months, the court shall dismiss the charges against the defendant;
• If the defendant is charged with a class 5 or class 6 felony, excluding victim's rights offenses, a level 3 or level 4 drug felony, or any misdemeanor offense not otherwise included in earlier section, and has been committed to the custody of the department or otherwise confined for an aggregate period of 1 year, and the court determines that he or she remains incompetent to proceed and there is not a substantial probability that he or she will be restored to competency within the next six months, the court shall dismiss the charges against the defendant. If the court determines there is a substantial probability that the defendant will be restored to competency within the next six months, restoration services may continue for another six months. After 18 months, the court shall dismiss the charges against the defendant;
• If the defendant is charged with any other felony offense, except a class 1, class 2, or class 3 felony, a sex offense, a crime of violence, or a level 1 or level 2 drug felony, and has been committed to the custody of the department or otherwise confined for an aggregate period of 3 years, and the court determines that he or she remains incompetent to proceed and there is not a substantial probability that he or she will be restored to competency within the next year, the court shall dismiss the charges against the defendant. If the court determines there is a substantial probability that the defendant will be restored to competency within the next year, restoration services may continue for another year. After 4 years, the court shall dismiss the charges against the defendant, unless any party objects. If a party objects to dismissal of charges, the court shall set the matter for a hearing;
• Prior to the dismissal of any charges, the court shall identify whether the defendant meets the requirements for certification or provision of services. If so, the court may stay the dismissal for 21 days and notify the department and county attorney in the relevant jurisdiction of the pending dismissal; and
• Certification proceedings may be brought against a defendant at any time.
• Sections 8, 9, 10, and 11 of the bill provide that officers of the judicial branch, district attorneys, public defenders, and attorneys for the office of alternate defense counsel should receive training concerning determinations of competency to proceed for juveniles and adults, evaluation reports, services to restore competency, and certification proceedings.
  (Note: This summary applies to the reengrossed version of this bill as introduced in the second house.)