1. A. A defendant's competency shall be evaluated by a psychologist or psychiatrist or other qualified professional recognized by the district court as an expert. The qualified professional who evaluates a defendant's competency shall prepare an evaluation report and submit the report as ordered by the court.

2. B. An evaluation report shall include a qualified professional's opinion as to whether a defendant is competent to stand trial and has:

   1. (1) a sufficient, present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding;
   2. (2) a rational and factual understanding of the proceedings against the defendant; and
   3. (3) the capacity to assist in the defendant's own defense and to comprehend the reasons for punishment.

3. C. If, in the opinion of the qualified professional, a defendant is not competent to stand trial, an evaluation report shall include the qualified professional's opinion as to whether the defendant:

   1. (1) satisfies the criteria for involuntary commitment in accordance with the Mental Health and Developmental Disabilities Code [Chapter 43, Article 1 NMSA 1978] and whether:

      1. (a) as a result of a mental disorder, the defendant presents a likelihood of serious harm to the defendant's self or others;
      2. (b) the defendant needs and is likely to benefit from involuntary commitment and treatment; and
      3. (c) the proposed commitment is consistent with the treatment needs of the defendant and with the least drastic means principle; or

   2. (2) satisfies the criteria for involuntary treatment in accordance with the Assisted Outpatient Treatment Act [43-1B-1 to 43-1B-14 NMSA 1978] and whether the defendant:

      1. (a) has a primary diagnosis of a mental disorder;
      2. (b) has demonstrated a history of lack of compliance with treatment for a mental disorder;
      3. (c) is unwilling or unlikely, as a result of a mental disorder, to voluntarily participate in outpatient treatment that would enable the person to live safely in the community without court supervision;
      4. (d) is in need of assisted outpatient treatment as the least restrictive appropriate alternative to prevent a relapse or deterioration likely to result in serious harm to the defendant's self or others; and
      5. (e) will likely benefit from assisted outpatient treatment and have the defendant's best interests served.

4. D. A competency hearing shall be held:

   1. (1) within thirty days from the date an evaluation report is submitted to the court for an incarcerated defendant charged with a felony;
   2. (2) within ten days from the date an evaluation report is submitted to the court for an incarcerated defendant not charged with a felony; and
   3. (3) within ninety days after an evaluation report is submitted to the court for a defendant who is not incarcerated.

History: 1978 Comp., § 31-9-1.1, enacted by Laws 1988, ch. 107, § 2 and by Laws 1988, ch. 108, § 2; 1993, ch. 240, § 2; 1993, ch. 249, § 2; 2025, ch. 4, § 2.

ANNOTATIONS

Cross references. — For rule of criminal procedure governing defenses of insanity, incompetency, and lack of capacity, see Rule 5-602 NMRA.

The 2025 amendment, effective June 20, 2025, required competency evaluation reports to include a qualified professional's opinion as to whether the defendant is competent to stand trial and, if it is the qualified professional's opinion that the defendant is not competent to stand trial, required the evaluation report to include the qualified professional's opinion as to whether the defendant satisfies the criteria for involuntary commitment under the Mental Health and Development Disabilities Code or for involuntary treatment in accordance with the Assisted Outpatient Treatment Act, and set time limits for holding competency hearings; added new subsection designation "A"; in Subsection A, after "shall be", deleted "professionally", after "as an expert", deleted "and a report shall be submitted" and added "The qualified professional who evaluates a defendant's competency shall prepare an evaluation report and submit the report"; added Subsections B and C; added subsection designation "D"; and in Subsection D, in the introductory clause, added "competency" preceding "hearing", after "hearing", deleted "on the issue of the competency of" and added "shall be held", added paragraph designations "(1)" and "(2)", in Paragraph D(1), after the paragraph designation, added "within thirty days from the date an evaluation report is submitted to the court for", and after "charged with a felony", deleted "shall be held by the district court within a reasonable time, but in no event later than thirty days after notification to the court of completion of the diagnostic evaluation. In the case of", in Paragraph D(2), after the paragraph designation, added "within ten days from the date an evaluation report is submitted to the court for", after "charged with a felony", deleted "the court shall hold a hearing and determine his competency within ten days of notification to the court of completion of the diagnostic evaluation"; and added Paragraph D(3).

The 1993 amendment, rewrote the section to the extent that a detailed comparison was impracticable. The section was also amended by Laws 1993, ch. 240, § 2, effective June 18, 1993. The section was set out as amended by Laws 1993, ch. 249, § 2. See 12-1-8 NMSA 1978.

Standard for competency. — The standard for competency is met if "defendant understands the nature and significance of the proceedings, has a factual understanding of the charges, and is able to assist his attorney in his defense". State v. Najar, 1986-NMCA-068, 104 N.M. 540, 724 P.2d 249, cert. denied, 104 N.M. 460, 722 P.2d 1182; State v. Duarte, 1996-NMCA-038, 121 N.M. 553, 915 P.2d 309, cert. denied, 121 N.M. 444, 913 P.2d 251.

Five year delay between arraignment and competency hearing. — The defendant was not denied due process when there was a five year delay between his arraignment and his competency hearing where much of the delay occurred awaiting a determination of the defendant’s competency by a qualified professional; the district court ordered the defendant’s attorney to request a competency hearing when the attorney received the report of the mental evaluation; no mental evaluation was submitted to the district court despite repeated court-ordered evaluations; and the defendant did not oppose his continued commitment. State v. Demongey, 2008-NMCA-066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 560, 263 P.3d 902.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist, 85 A.L.R.4th 19.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.