CHAPTER 229
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; evaluation for temporary detention.
[H 1908]
Approved March 22, 2023
Be it enacted by the General Assembly of Virginia:
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. (Effective until July 1, 2023) Raising question of competency to stand trial or plead; evaluation and determination of competency.
A. Raising competency issue; 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 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; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner.
B. Location of evaluation. — 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.
C. Provision of information to evaluators. — The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation; (iii) information about the alleged crime; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant to provide any available psychiatric records and other information that is deemed relevant. 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.
D. The competency report. — Upon completion of the evaluation,
the evaluators shall promptly submit a report in writing to the court and the
attorneys of record concerning (i) the defendant's capacity to understand the
proceedings against him; (ii) his the defendant's ability to
assist his attorney; and (iii) his the defendant's need
for treatment in the event he is found incompetent but restorable, or
incompetent for the foreseeable future; 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.
If a need for restoration treatment is identified pursuant to
clause (iii), the report shall state whether inpatient or outpatient treatment
(community-based or jail-based) is recommended. Outpatient treatment may occur
in a local correctional facility or at a location determined by the appropriate
community services board or behavioral health authority. 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 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 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. No statements of the defendant
relating to the time period of the alleged offense shall be included in the
report. The evaluator shall also send a redacted copy of the report removing
references to the defendant's name, date of birth, case number, and court of
jurisdiction to the Commissioner of Behavioral Health and Developmental
Services for the purpose of peer review to establish and maintain the list of
approved evaluators described in subsection A.
E. The competency determination. — After receiving the report described in subsection D, the court shall promptly determine whether the defendant is competent to stand trial. A hearing on the defendant's competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the defendant, or unless the court has reasonable cause to believe the defendant will be hospitalized under § 19.2-169.2. If a hearing is held, the party alleging that the defendant is incompetent shall bear the burden of proving by a preponderance of the evidence the defendant's incompetency. The defendant shall have the right to notice of the hearing, the right to counsel at the hearing and the right to personally participate in and introduce evidence at the hearing.
The fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of competency if the defendant otherwise understands the charges against him and can assist in his defense. Nor shall the fact that the defendant is under the influence of medication bar a finding of competency if the defendant is able to understand the charges against him and assist in his defense while medicated.
F. Finding. — If the court finds the defendant competent to stand trial, the case shall be set for trial or a preliminary hearing. If the court finds the defendant either incompetent but restorable or incompetent for the foreseeable future, the court shall proceed pursuant to § 19.2-169.2.
§ 19.2-169.2. (Effective until July 1, 2023) Disposition when defendant found incompetent.
A. Upon finding pursuant to subsection E or F of § 19.2-169.1 that the defendant, including a juvenile transferred pursuant to § 16.1-269.1, is incompetent, the court shall order that the defendant receive treatment to restore his competency on an outpatient basis or, if the court specifically finds that the defendant requires inpatient hospital treatment, at a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for treatment of persons under criminal charge. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority. Notwithstanding the provisions of § 19.2-178, if the court orders inpatient hospital treatment, the defendant shall be transferred to and accepted by the hospital designated by the Commissioner as soon as practicable, but no later than 10 days, from the receipt of the court order requiring treatment to restore the defendant's competency. If the 10-day period expires on a Saturday, Sunday, or other legal holiday, the 10 days shall be extended to the next day that is not a Saturday, Sunday, or legal holiday. Any psychiatric records and other information that have been deemed relevant and submitted by the attorney for the defendant pursuant to subsection C of § 19.2-169.1 and any reports submitted pursuant to subsection D of § 19.2-169.1 shall be made available to the director of the community services board or behavioral health authority or his designee or to the director of the treating inpatient facility or his designee within 96 hours of the issuance of the court order requiring treatment to restore the defendant's competency. If the 96-hour period expires on a Saturday, Sunday, or other legal holiday, the 96 hours shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.
B. If, at any time after the defendant is ordered to undergo treatment under subsection A, the director of the community services board or behavioral health authority or his designee or the director of the treating inpatient facility or his designee believes the defendant's competency is restored, the director or his designee shall immediately send a report to the court as prescribed in subsection D of § 19.2-169.1. The court shall make a ruling on the defendant's competency according to the procedures specified in subsection E of § 19.2-169.1.
C. Notwithstanding the provisions of subsection A, in cases in
which (i) 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; (ii) the defendant has
been found to be incompetent pursuant to subsection E or F of § 19.2-169.1; 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 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 evaluation of the defendant and (b) if the community services board
or behavioral health authority determines 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
health 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 such notice, the court may
dismiss the charges without prejudice against the defendant. However, the
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 the attorney for
the Commonwealth does not concur in the motion.
D. If a defendant for whom an evaluation has been ordered pursuant to subsection C fails or refuses to appear for the evaluation, the community services board or behavioral health authority shall 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.
E. 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 subsection A.
2. That the second enactment of Chapter 508 of the Acts of Assembly of 2022 is repealed.