If at any time the district court determines that there is not a substantial probability that the defendant will 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, the district court may:
A. hear the matter pursuant to Section 31-9-1.5 NMSA 1978 within three months if the defendant is charged with a felony that involves the infliction of great bodily harm on another person; a felony that involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;
B. release the defendant from custody and dismiss with prejudice the charges against him; or
C. dismiss the criminal case without prejudice in the interest of justice. If the treatment supervisor has issued a report finding that the defendant satisfies the criteria for involuntary commitment contained in the Mental Health and Developmental Disabilities Code [43-1-2 NMSA 1978], the department of health shall commence proceedings pursuant to Chapter 43, Article 1 NMSA 1978, and the court may order the defendant confined for a maximum of seven days to facilitate preparation and initiation of 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.
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.
Cross references. — For rule of criminal procedure governing defenses of insanity, incompetency, and lack of capacity, see Rule 5-602 NMRA.
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.
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