1. A. If, after a competency hearing, a court determines that a defendant is not competent to stand trial, the court shall determine if the defendant is dangerous. A defendant who is not competent is dangerous if the court finds by clear and convincing evidence that the defendant presents a serious threat of:

   1. (1) committing murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978;
   2. (2) inflicting great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;
   3. (3) committing criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;
   4. (4) committing criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;
   5. (5) committing abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;
   6. (6) violating a provision of the Sexual Exploitation of Children Act [Chapter 30, Article 6A NMSA 1978];
   7. (7) committing human trafficking, as provided in Section 30-52-1 NMSA 1978;
   8. (8) committing aggravated arson, as provided in Section 30-17-6 NMSA 1978; or
   9. (9) committing any "serious violent offense" enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L [N] of Section 33-2-34 NMSA 1978 with the use of a firearm.

2. B. If the court determines that a defendant is not dangerous, the court may order the defendant to participate in a community-based competency restoration program or dismiss the criminal case without prejudice in the interests of justice; provided that if the court dismisses the case, the court may:

   1. (1) advise the district attorney to consider the initiation of involuntary civil commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code [Chapter 43, Article 1 NMSA 1978] and may detain the defendant for a maximum of seven days to facilitate initiation of those proceedings; or
   2. (2) advise the district attorney to consider initiation of proceedings in accordance with the Assisted Outpatient Treatment Act [43-1B-1 to 43-1B-14 NMSA 1978] but may not detain the defendant for that purpose.

3. C. A community-based competency restoration program is a court-approved program that is designed to restore a defendant to competency and provided in an outpatient setting in the community where the defendant resides. A court may order a defendant to participate in a community-based competency restoration program for no longer than ninety days, and:

   1. (1) within thirty days of the date that the defendant was ordered to participate in a community-based competency restoration program, the person supervising the defendant's competency restoration program shall submit a progress report to the court and both parties that includes:

      1. (a) an initial assessment of the defendant and a description of the competency restoration programming that will be provided to the defendant;
      2. (b) a report on the defendant's amenability to competency restoration;
      3. (c) an assessment of the program's capacity to provide appropriate programming for the defendant; and
      4. (d) an opinion as to the probability of the defendant being restored to competency within ninety days from the date that the court ordered the defendant's participation in the community-based competency restoration program;

   2. (2) no later than ninety days from the date that the court ordered the defendant to participate in a community-based competency restoration program, the court shall hold a review hearing and determine if the defendant has been restored to competency and at least seven days prior to the review hearing, the person supervising the defendant's competency restoration program shall submit a written report that includes:

      1. (a) an opinion as to whether the defendant has been restored to competency;
      2. (b) if the defendant is receiving medication, information from the prescribing physician about the type, dosage and effect of the medication on the defendant's appearance, actions and demeanor;
      3. (c) if the defendant remains not competent, an opinion as to whether the defendant satisfies the criteria for involuntary commitment in accordance with the Mental Health and Developmental Disabilities Code and whether: 1) as a result of mental disorder, the defendant presents a likelihood of serious harm to the defendant's self or others; 2) the defendant needs and is likely to benefit from involuntary commitment and treatment; and 3) the proposed commitment is consistent with the treatment needs of the defendant and with the least drastic means principle; and
      4. (d) if the defendant remains not competent, an opinion as to whether the defendant satisfies the criteria for involuntary treatment in accordance with the Assisted Outpatient Treatment Act and whether the defendant: 1) has a primary diagnosis of a mental disorder; 2) has demonstrated a history of lack of compliance with treatment for a mental disorder; 3) is unwilling or unlikely, as a result of a mental disorder, to voluntarily participate in outpatient treatment that would enable the defendant to live safely in the community without court supervision; 4) 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) will likely benefit from assisted outpatient treatment and have the defendant's best interests served; and
   3. (3) if, after a review hearing, the court finds that the defendant is competent, the case shall proceed to trial, but if the court finds that the defendant remains not competent, the case shall be dismissed without prejudice and the court may advise the district attorney to consider initiating proceedings in accordance with the Mental Health and Developmental Disabilities Code or the Assisted Outpatient Treatment Act.

4. D. If the court determines that a defendant who is not competent is dangerous, the district court may commit the defendant as provided in this section for competency restoration. If the court orders commitment, the court shall enter a transport order that provides for the defendant's return to the local jail within seventy-two hours upon the defendant being restored to competency, completion of the competency restoration program or as otherwise required by the court. A defendant committed for competency restoration shall be provided with treatment available to persons subject to civil commitment, and:

   1. (1) shall be detained by the department of health in a secure, locked facility; and
   2. (2) shall not be released from that facility except pursuant to an order of the court that committed the defendant.
5. E. The department of health shall admit a defendant for competency restoration within fifteen days of receipt of the court's order of commitment of an incompetent defendant and of the necessary and available documents reasonably required for admission pursuant to written policies adopted by the secretary of health or the secretary's designee. If the secretary of health or the secretary's designee determines that the department of health does not have the ability to meet the needs of the defendant, the secretary or the secretary's designee may refuse admission by providing written certification to the committing court and the parties of the department's inability to meet the needs of the defendant. The certification shall be made within seven days of the receipt of the court's order of commitment and necessary and available documents reasonably required for admission pursuant to written policies adopted by the secretary or the secretary's designee. Within ten days of filing of the certification, the court shall conduct a hearing for further disposition of the criminal case.

6. F. Within thirty days of a defendant's admission to a department of health facility or an inpatient psychiatric hospital for competency restoration, the department shall file with the court, the state and the defense:

   1. (1) an initial assessment of the defendant and treatment plan;
   2. (2) a report on the defendant's amenability to competency restoration;
   3. (3) an assessment of the department's capacity to provide appropriate treatment for the defendant; and
   4. (4) an opinion as to the probability of the defendant being restored to competency within nine months from the date the court determined the defendant is not competent to stand trial.

History: 1978 Comp., § 31-9-1.2, enacted by Laws 1988, ch. 107, § 3 and by Laws 1988, ch. 108, § 3; 1993, ch. 240, § 3; 1993, ch. 249, § 3; 1999, ch. 149, § 1; 2025, ch. 4, § 3.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2025, ch. 79, § 4 and Laws 2025, ch. 29, § 1 amended 33-2-34 NMSA 1978, relettering subsections, effective June 20, 2025.

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, made changes to the dangerousness standards to refine and expand how the legal system evaluates and addresses defendants deemed incompetent to stand trial, broadened the definition of dangerousness by expanding the list of crimes that trigger mandatory criminal commitment hearings and eligibility for involuntary commitment under the Mental Health and Developmental Disabilities Code or the Assisted Outpatient Treatment Act, and clarified language for courts to assess dangerousness standards by specifying that these evaluations must align with stricter timelines and more defined reporting criteria; in Subsection A, after the subsection designation, deleted "When" and added "If", added "a competency" preceding "hearing", after "competent to", deleted "proceed in a criminal case and the court does not find that" and added "stand trial, the court shall determine if", and after "is dangerous", added "A defendant who is not competent is dangerous if the court finds by clear and convincing evidence that the defendant presents a serious threat of", and added Paragraphs A(1) through A(9); added new subsection designation "B" and redesignated former Subsections B and C as Subsections D and E, respectively, in Subsection B, after the subsection designation, added "If the court determines that a defendant is not dangerous", after "the court may", added "order the defendant to participate in a community-based competency restoration program or", and after "in the interests of justice", deleted "Upon dismissal the court may advise the district attorney to consider initiation of proceedings under the Mental Health and Developmental Disabilities Code and order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code" and added "provided that if the court dismisses the case, the court may:", and added new Paragraphs B(1) and B(2); added a new Subsection C; in Subsection D, in the introductory paragraph, after "If the court determines that a", deleted "defendant charged with a felony is incompetent to proceed in the criminal case, but does not dismiss the criminal case, and the district court at that time makes a specific finding that the", after "defendant", added "who is not competent", after "as provided in this section for", deleted "treatment to attain competency to proceed in a criminal case. The court shall enter an appropriate transport order that also provides for return of the defendant to the local facilities of the court upon completion of the treatment. The defendant so committed" and added "competency restoration. If the court orders commitment, the court shall enter a transport order that provides for the defendant's return to the local jail within seventy-two hours upon the defendant being restored to competency, completion of the competency restoration program or as otherwise required by the court. A defendant committed for competency restoration", after "available to", deleted "involuntarily committed", and after "persons", added "subject to civil commitment"; in Subsection E, after the subsection designation, added "the department of health shall admit a defendant for competency restoration", after "within", deleted "thirty" and added "fifteen", after "secretary of health or", deleted "his designee, the defendant shall be admitted to a facility designated for the treatment of defendants who are incompetent to stand trial and dangerous. If after conducting an investigation", and added "the secretary's designee", after the next occurrence of "secretary", added "of health or the secretary's designee", and after "The certification shall be made within", deleted "fourteen" and added "seven"; deleted former Subsection D and redesignated former Subsection E as Subsection F; and in Subsection F, in the introductory clause, after "admission to a", added "department of health", after "facility", deleted "to undergo treatment to attain competency to proceed in a criminal case, the person supervising the defendant's treatment" and added "or an inpatient psychiatric hospital for competency restoration, the department", and added new paragraph designations "(1)" through "(4)".

The 1999 amendment, effective June 18, 1999, added "and order the defendant confined for a maximum of seven days to facilitate preparation and initiation of a petition pursuant to that code" at the end of Subsection A; in Subsection B, inserted "charged with a felony" following "a defendant", substituted "proceed in the criminal case" for "stand trial", substituted "commit the defendant as provided in this section for" for "order", and deleted "for a period not to exceed one year" following "in a criminal case" in the first sentence; added Subsection C and redesignated the remaining subsections accordingly; and substituted "nine months" for "one year" in Subsection E.

The 1993 amendment, effective June 18, 1993, rewrote the section to the extent that a detailed comparison was impracticable. This section was also amended by Laws 1993, ch. 240, § 3, effective June 18, 1993. The section was set out as amended by Laws 1993, ch. 249, § 3. See 12-1-8 NMSA 1978.

Rules of evidence apply to dangerousness hearings. — Where defendant was charged by criminal information with battery upon a peace officer and assault upon a peace officer, and where, while released from jail on the condition that she report to pretrial services, defendant was re-arrested and charged with another count of battery upon a peace officer, and where the state moved to revoke defendant's conditions of release based on the new charge and the failure to comply with conditions of release, and where the district court amended the conditions of release but denied the motion to revoke, and where, pending trial, defendant moved for, and was granted, a competency evaluation to determine if she was competent to stand trial, and where, upon completion and receipt of defendant's competency evaluation, the district court found defendant incompetent to proceed to trial, and where the state filed a notice of intent to raise dangerousness, and where, prior to the dangerousness hearing, defendant was charged in a third case with two counts of indecent exposure, and where, at the dangerousness hearing, the state attempted to introduce into evidence copies of defendant's three criminal complaints and a printout of defendant's criminal history, and where defendant objected to the use of the state's exhibits, claiming that the criminal complaints constituted hearsay with no foundation in sworn testimony and that their introduction would violate the New Mexico Rules of Evidence, and where the state argued that the Rules of Evidence did not apply to competency or dangerousness hearings, the district court did not err excluding the state's proposed evidence and finding that the New Mexico Rules of Evidence apply to all criminal proceedings under Rule 11-1101(B) NMRA, because under the plain language of Rule 11-1101(B), the Rules of Evidence apply unless a dangerousness hearing falls into one of the listed exceptions, and the plain language of the exceptions listed in Rule 11-1101(D) do not include a dangerousness hearing under NMSA 1978, § 31-9-1.2 or Rule 5-602.2 NMRA. State v. Archuleta, 2023-NMCA-077, cert. denied.

In considering whether reasonable doubt exists, the court must keep in mind the requirement that a defendant must have sufficient present ability to consult and understand as required under due process of law. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 586, 124 P.3d 564.

Defense counsel's observations and opinions. — A court may consider defense counsel's observations and opinions, but those observations and opinions alone cannot trigger reasonable doubts about defendant's competency. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 586, 124 P.3d 564.

Finding of dangerousness as prerequisite to detention. — In the context of the competency statutes, the finding of dangerousness is a prerequisite to the applicability of the portions of the statute allowing defendant to be detained for a longer period of time. Thus, the court must make a finding of dangerousness prior to the detention authorized by Section 31-9-1.5 NMSA 1978, but it need not have made such a finding at a prior hearing. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert. denied, 111 N.M. 77, 801 P.2d 659.

Sufficient evidence supported the district court's conclusion that the state did not meet its burden to establish dangerousness. — Where defendant's competency became an issue after she was charged with aggravated assault with a deadly weapon, unlawful taking of a motor vehicle, and use of a telephone to harass, threaten, annoy, or offend, and where the state filed a motion for a hearing to determine dangerousness, setting forth facts supporting the current charges and listing five other unrelated charges that had been dismissed for various reasons, substantial evidence supported the district court's decision that the state did not meets its burden to prove by clear and convincing evidence that defendant was currently dangerous where the evidence established that defendant fired a rifle but did not intend to shoot the alleged victims, the state never established, or even suggested, in its motion for a dangerousness determination that the prior dismissed charges were relevant or supported a conclusion that defendant was currently dangerous, the state did not present any evidence concerning defendant's current mental state, and medical testimony established that defendant's behavior was amenable to treatment by prescriptions and by other counseling and therapy. State v. Holbert, 2024-NMCA-069.

The district court erred in dismissing the case with prejudice. — Where defendant's competency became an issue after she was charged with aggravated assault with a deadly weapon, unlawful taking of a motor vehicle, and use of a telephone to harass, threaten, annoy, or offend, and where, after a forensic evaluation, the district court dismissed the criminal information with prejudice after a finding that defendant was incompetent to stand trial but was not dangerous, it was error for the court to dismiss the case with prejudice, because dismissal under 31-9-1.2(A) NMSA 1978 is permitted only if it is without prejudice. State v. Holbert, 2024-NMCA-069.