If at any time the district court determines that there is not a substantial probability that the defendant will be restored to competency within nine months from the date the court determined the defendant is not competent to stand trial, the district court may:

1. A. hold a criminal commitment hearing in accordance with Section 31-9-1.5 NMSA 1978 within three months if the defendant is charged with:

   1. (1) murder in the first or second degree, as provided in Section 30-2-1 NMSA 1978;
   2. (2) a felony involving infliction of great bodily harm, as defined in Section 30-1-12 NMSA 1978, on another person;
   3. (3) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;
   4. (4) criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;
   5. (5) abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA 1978;
   6. (6) a crime provided for in the Sexual Exploitation of Children Act [Chapter 30, Article 6A NMSA 1978];
   7. (7) human trafficking, as provided in Section 30-52-1 NMSA 1978;
   8. (8) aggravated arson, as provided in Section 30-17-6 NMSA 1978; or
   9. (9) 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. release the defendant from custody and dismiss the criminal case with prejudice; or
3. C. dismiss the criminal case without prejudice in the interest of justice; provided that if the treatment supervisor reports to the court that the defendant satisfies the criteria for involuntary commitment in accordance with the Mental Health and Developmental Disabilities Code [Chapter 43, Article 1 NMSA 1978], the department of health shall initiate those proceedings, and the court may order the defendant confined for a maximum of seven days to facilitate the initiation of those proceedings; and provided further that the district attorney may initiate involuntary commitment proceedings in the department's stead.

History: 1978 Comp., § 31-9-1.4, enacted by Laws 1988, ch. 107, § 5 and by Laws 1988, ch. 108, § 5; 1993, ch. 240, § 5; 1993, ch. 249, § 5; 1999, ch. 149, § 3; 2025, ch. 4, § 5.

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, clarified certain language related to competency proceedings for defendants who have been found not competent to stand trial, and revised the list of crimes for which the district court may hold criminal commitment hearings for defendants who have been found not competent to stand trial; in the introductory clause, after "defendant will", deleted "become competent to proceed in a criminal case within a reasonable period of time not to exceed nine months from the date of the original finding of incompetency" and added "be restored to competency within nine months from the date the court determined the defendant is not competent to stand trial", in Subsection A, after the subsection designation, deleted "hear the matter pursuant to" and added "hold a criminal commitment hearing in accordance with", after "the defendant is charged with", deleted the remainder of the subsection, and added Paragraphs B(1) through B(9); and in Subsection C, after "to facilitate the initiation of", deleted "a petition pursuant to the Mental Health and Developmental Disabilities code. The district court may refer the defendant to the district attorney for possible initiation of proceedings under the Mental Health and Developmental Disabilities Code" and added "those proceedings; and provided further that the district attorney may initiate involuntary commitment proceedings in the department's stead.".

The 1999 amendment, effective June 18, 1999, substituted "nine months" for "one year" in the introductory paragraph, rewrote Subsection A which read: "set the matter for hearing pursuant to Section 31-9-1.5 NMSA 1978", and added the second sentence in Subsection C.

The 1993 amendment, effective June 18, 1993, rewrote the section to the extent that a detailed comparison is impracticable. This section was also amended by Laws 1993, ch. 240, § 5, effective June 18, 1993. The section was set out as amended by Laws 1993, ch. 249, § 5. See 12-1-8 NMSA 1978.