HB 1908 — Criminal proceedings; disposition when defendant found incompetent.

SESSION ENROLLED VIRGINIA ACTS OF ASSEMBLY ––-- 2023 SESSION CHAPTER E229 An Act to amend and reenact §§ 19.2-169.1, as it is currently effective, and 19.2-169.2, as it is currently effective, of the Code of Virginia and to repeal the second enactment of Chapter 508 of the Acts of Assembly of 2022, relating to criminal proceedings;

disposition when defendant found incompetent;ofincompetent; evaluation for temporary detention.

Oevaluation Lfor [Htemporary 1908]detention. L Approved E Be it enacted by the General Assembly of Virginia:

D[H Code1908] ofApproved VirginiaMarch are22, amended2023 andBe reenactedit asenacted follows:ndby 19.2-169.2,the asGeneral itAssembly is currently effective, of theVirginia: § 19.2-169.1.

1.

That §§ 19.2-169.1, as it is currently effective, and 19.2-169.2, as it is currently effective, of the Code of Virginia are amended and reenacted as follows:

§ 19.2-169.1.

A.defendant has been retained or appointed and before the end of trial, the court finds, upon hearingr the evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations;

Raising(ii) competencyhas issue;successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services;

appointment of evaluators.

–– If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant Ho § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or 1o assist least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations;

(ii) hasat successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services;

–– The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion or unless the defendant is in the custody of the Commissioner of Behavioral Health and Developmental Services pursuant to § 19.2-169.2, 19.2-169.6, 19.2-182.2, 19.2-182.3, 19.2-182.8, 19.2-182.9, or Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2.

The court shall require the attorney for the defendant to provide any available informationpsychiatric berecords providedand toother theinformation evaluatorthat withinis 96deemed hoursrelevant. of the issuance of the court order pursuant to this section.

The court shall require that information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to this section.

and (iv) if the defendant has been charged with a misdemeanor violation of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128, whether the defendant should be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809 in the event he is found incompetent but restorable or incompetent for the foreseeable future.

In cases where a defendant is likely to remain incompetent for the foreseeable future due to an ongoing and irreversible medical condition, and where prior medical or educational records are available to support the diagnosis, or if the defendant was previously determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant unrestorably incompetent to stand trial and the court may proceed with the disposition of the case in accordance with § 19.2-169.3.

In cases where a defendant has been charged of 3 with a misdemeanor violation of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128 and is incompetent, the of 3 report may recommend that the court direct the community services board or behavioral health authority for the jurisdiction in which the defendant is located to (a) conduct an evaluation of the defendant in accordance with subsection B of § 37.2-808 to determine whether the defendant meets the criteria for temporary detention and (b) upon determining that the defendant does meet the criteria for temporary detention, file a petition for issuance of an order for temporary detention of the defendant in accordance with § 37.2-809.

and (iii) the competency report described in subsection D of § 19.2-169.1 recommends that the defendant be temporarily detained evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809, the court may dismiss the charges without prejudice against the defendant and, in lieu of ordering the of 3 defendant receive treatment to restore his competency, order the community services board or behavioral health authority serving the jurisdiction in which the defendant is located to (a) conduct an eEaluationevaluation of the defendant and (b) if the community services board or behavioral health authority determinesNthatdetermines that the defendant meets the criteria for temporary detention, file a petition for issuance of an order for temporary detention pursuant to § 37.2-809.

The community services board or behavioral healthrhealth forof 3 authority shall notify the court, in writing, within 72 hours of the completion of the evaluation and, if appropriate, file a petition for issuance of an order for temporary detention.

Upon receipt of Ouchsuch notice, the court may dismiss the charges without prejudice against the defendant.

However, theLcourtthe court shall not dismiss charges and enter an order or dismiss charges against a defendant pursuant to this subsection if the attorney for the Commonwealth is involved in the prosecution of the case and theisthe attorney for the Commonwealth does not concur in the motion.

L D.

If a defendant for whom an evaluation has been ordered pursuant to subsection C fails or Eefusesrefuses to appear for the evaluation, the community services board or behavioral health authority shallDnotifyshall notify the court and the court shall issue a mandatory examination order and capias directing the primary law-enforcement agency for the jurisdiction in which the defendant resides to transport the defendant to the location designated by the community services board or behavioral health authority for examination.

The clerk of the court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of an order for treatment issued pursuant to 2.subsection A.

2.

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