AB 377 — Revises provisions relating to the competency of a defendant in a criminal case. (BDR 14-1074)

(ReprintedAssembly withBill amendmentsNo. adopted on May 24, 2017) SECOND REPRINT A.B.

377377–Assemblyman AOhrenschall SSEMBLYCHAPTER.......... B ILLN O.

377–ASSEMBLYMAN OHRENSCHALL M ARCH 20, 2017 ____________ Referred to Committee on Judiciary SUMMARY—Revises provisions relating to the competency of a defendant in a criminal case.

(BDR 14-1074) FISCAL NOTE:

Effect on Local Government:

No.

Effect on the State:

No.

~ EXPLANATION – Matter in bolded italics is new;

matter between brackets [omitted material] is material to be omitted.

punishmentExisting forlaw aprovides publicthat: offense while incompetent;

and(1) (2) any time after the arrest of a defendant,person ifmay doubtnot arisesbe astried to the competence of the defendant, the court must suspend the proceedings, the trial or theadjudged pronouncingto ofpunishment thefor judgmenta untilpublic theoffense questionwhile ofincompetent; competence is determined.

(NRSand 178.400,(2) 178.405)any Sectiontime 1after ofthe thisarrest billsuspend providesthe thatproceedings, a prosecuting attorney may not seek an indictment of the defendanttrial foror any offense during the periodpronouncing inof which the courtjudgment isuntil consideringthet prosecutingmust attorney’squestion application for leave of thecompetence court.is determined.

(NRS 178.400, 178.405) Section 1 of this bill provides that a prosecuting attorney may not seek an indictment of the defendant for any offense during the period in which the court is considering whether the defendant is competent or incompetent except upon the prosecuting attorney’s application for leave of the court.

and (2) give at least 24 hours’ notice of the application to the defendant’sdefeExisting attorney.law provides that, under certain circumstances, when a criminal defendant has been found incompetent, the proceedings against the defendant must be dismissed.

defendant has been found incompetent, the proceedings against the defendant must be dismissed.

(1) the State has a good faith belief, based on articulable facts, that the defendant has regained - *AB377_R2* – 2 – competency;

Section 2 requiresto the prosecutingdefendant’s attorneyattorney.orney to give at least 24 hours’ notice of the application Existing law provides that if a court dismisses the proceedings against a defendant who is charged with a category A or certain category B felonies because the court finds that the defendant is incompetent with no substantial probability of attaining competence in the foreseeable future, the prosecuting attorney is authorized to file a motion with the defendant’scourt attorney.for a hearing to determine whether to commit the person to the custody of the Administrator of the Division of Public and Behavioral Health of the Department of Health and Human Services.

defendantThe who is charged with a category A or certain category B felonies because the court finds that the defendant is incompetent with no substantial probability of attaining competence in the foreseeable future, the prosecuting attorney is authorized to file a motion with the court for a hearing to determine whether to commit the person to the custody of the Administrator of the Division of Public and maximum length of such commitment is 10 years.

(NRS 178.461) Section 4 of this billrequest revisesan theseextension provisionsof to:the length of commitment for not more than 5 additionalion to years of a person charged with murder or sexual assault under certain circumstances;

(1)(2) authorize thea Administratorcourt to filegrant athe motion tofor request an extension of the length of commitment forafter nota morehearing thanto 5determine additionalwhether yearsthe of a person chargedmeets withcertain murdercriteria orrequiring sexualplacement assaultat undera certainforensic circumstances;facility;

(2)and authorize(3) provide that a courtperson tocommitted grant- the79th motionSession for(2017) an– extension2 of– commitmentattorney afterappointed afor hearinghim toor determineher whetherif the person meetsdoes certainnot criteriahave hascounsel.ight the right to be represented by counsel at such a hearing and the right to have an attorneyEXPLANATION appointed– forMatter himin orbolded heritalics ifis thenew; person does not have counsel.

matter between brackets [omitted material] is material to be omitted.

Except as otherwise provided in this subsection, the court shall appoint two psychiatrists, two psychologists, orIf onethe psychiatristdefendant andis oneaccused psychologist,of toa examinemisdemeanor, the defendant.court ofefendant.

If the defendant is accused of a misdemeanor, the court of jurisdiction shall appoint a psychiatric social worker, or other person who is especially qualified by the Division, to examine the defendant.

A prosecuting attorney may not seek an indictment of the defendant for any offense during the period in which the court is - *AB377_R2* – 3 – considering whether the defendant is competent or incompetent except upon application by the prosecuting attorney to the chief judge of the district court, or his or her designee, and with leave of the court.

- 79th Session (2017) – 3 – 5.

The court shall not appoint a person to provide a report or an evaluation pursuant to this section, unless the person is certifiedcerSec. by the Division pursuant to NRS 178.417.

Sec.2.by NRS 178.425 is hereby amended to read as follows:

2.

NRS 178.425 is hereby amended to read as follows:

If the court finds the defendant incompetent but not dangerous to himself or herself or to society, and finds that commitment is not required for a determination of the defendant’s ability to receive treatment to competency and to attain competence, the judge shall order the defendant to report to the Administrator or the Administrator’s designee as an outpatient for treatment, if it might be beneficial, and for a determination of the defendant’s abilityThe tocourt receivemay treatmentrequire the defendant to competencygive andbail tofor attainany competence.periodicce.

The court may require the defendant to give bail for any periodic appearances before the Administrator or the Administrator’s designee.

Except as otherwise provided in subsection 5, proceedings against the defendant must be suspended until the - *AB377_R2* – 4 – Administrator or the Administrator’s designee or, if the defendant is charged with a misdemeanor, the judge finds the defendant capable of standing trial or opposing pronouncement of judgment as provided in NRS 178.400.

Whenever the defendant has been found incompetent, with no substantial probability of attaining competency in the foreseeable future, and released from custody or from obligations as an outpatient pursuant to paragraph (d) of subsection 4 of NRS 178.460, the proceedings against the defendant which were - 79th Session (2017) – 4 – suspended must be dismissed.

No new charge arising out of the same circumstances may be brought [after a] except upon application by the prosecuting attorney to the chief judge of the district court, or his or her designee, and with leave of the court where:whe(a) The State has a good faith belief, based on articulable facts, that the defendant has attained competency;

(a) The State has a good faith belief, based on articulable facts, that the defendant has attained competency;

178.460the 1.defendant within 10 days after the report by the Administrator or the Administrator’s designee is sent to them, the judge shall hold a hearing within 10 days after the request at which the district attorney and the defense counsel may examine the members of the treatment team on their report.

If requested by the district attorney or counsel for the defendant within 10 days after the report by the Administrator or the Administrator’s designee is sent to them, the judge shall hold a hearing within 10 days after the request at which the district attorney and the defense counsel may examine the members of the treatment team on their report.

If the judge orders the appointment of a licensed psychiatrist or psychologist who is not employed by the Division to perform an - *AB377_R2* – 5 – additional evaluation and report concerning the defendant, the cost of the additional evaluation and report is a charge against the county.