Assembly Bill No. 582–Committee on Judiciary

 

(On Behalf of Department of Human Resources—Mental
Health and Developmental Services)

 

March 26, 2001

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Revises provisions pertaining to competency of defendants. (BDR 14‑345)

 

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.

 

AN ACT relating to criminal procedure; revising the provisions pertaining to the competency of defendants; eliminating the sanity commission; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. NRS 178.425 is hereby amended to read as follows:

1-2    178.425  1.  If the court finds the defendant incompetent, and that he

1-3  is dangerous to himself or to society or that commitment is required for a

1-4  determination of his ability to attain competence, the judge shall order the

1-5  sheriff to convey him forthwith, together with a copy of the complaint, the

1-6  commitment and the physicians’ certificate, if any, into the custody of the

1-7  administrator of the division of mental health and developmental services

1-8  of the department of human resources or his designee for detention and

1-9  treatment at a secure facility operated by that division.

1-10    2.  The defendant must be held in such custody until a court orders his

1-11  release or until he is returned for trial or judgment as provided in NRS

1-12  178.450 to [178.465,] 178.460, inclusive.

1-13    3.  If the court finds the defendant incompetent but not dangerous to

1-14  himself or to society, and finds that commitment is not required for a

1-15  determination of the defendant’s ability to attain competence, the judge

1-16  shall order the defendant to report to the administrator or his designee as

1-17  an outpatient for treatment, if it might be beneficial, and for a

1-18  determination of his ability to attain competence. The court may require the

1-19  defendant to give bail for his periodic appearances before the administrator

1-20  [.] or his designee.

2-1    4.  Except as otherwise provided in subsection 5, proceedings against

2-2  the defendant must be suspended until the [sanity commission]

2-3  administrator or his designee or, if the defendant is charged with a

2-4  misdemeanor, the judge finds him capable of standing trial or opposing

2-5  pronouncement of judgment as provided in NRS 178.400.

2-6    5.  Whenever the defendant has been found incompetent, with no

2-7  substantial probability of attaining competency in the foreseeable future,

2-8  and released from custody or from obligations as an outpatient pursuant to

2-9  paragraph (d) of subsection [3] 4 of NRS 178.460, the proceedings against

2-10  the defendant which were suspended must be dismissed. No new charge

2-11  arising out of the same circumstances may be brought after a period, equal

2-12  to the maximum time allowed by law for commencing a criminal action for

2-13  the crime with which the defendant was charged, has lapsed since the date

2-14  of the alleged offense.

2-15    Sec. 2.  NRS 178.435 is hereby amended to read as follows:

2-16    178.435  The expenses of the examination and of the transportation of

2-17  the defendant to and from the custody of the administrator of the division

2-18  of mental health and developmental services of the department of human

2-19  resources or his designee are in the first instance chargeable to the county

2-20  or city from which he has been sent. But the county or city may recover the

2-21  money from the estate of the defendant, from a relative legally bound to

2-22  care for him or from the county or city of which he is a resident.

2-23    Sec. 3.  NRS 178.450 is hereby amended to read as follows:

2-24    178.450  1.  The administrator of the division of mental health and

2-25  developmental services of the department of human resources or his

2-26  designee shall keep each defendant committed to his custody under NRS

2-27  178.425 or 178.460 under observation and shall have each defendant who

2-28  has been ordered to report to him as an outpatient under those sections

2-29  evaluated periodically.

2-30    2.  The administrator or his designee shall [notify] report in writing to

2-31  a judge of the court which committed the person and the prosecuting

2-32  attorney of the county or city to which the person may be returned for

2-33  further court action whether, in his opinion, upon medical consultation, the

2-34  defendant is of sufficient mentality to be able to understand the nature of

2-35  the criminal charge against him and, by reason thereof, is able to aid and

2-36  assist his counsel in the defense interposed upon the trial or against the

2-37  pronouncement of the judgment thereafter. The administrator or his

2-38  designee shall submit such a [notification,] report, in the case of a person

2-39  charged or convicted of a misdemeanor, within 3 months after the order for

2-40  commitment or treatment and evaluation as an outpatient or for

2-41  recommitment pursuant to paragraph (b) of subsection [3] 4 of NRS

2-42  178.460, and at monthly intervals thereafter. In all other cases, the initial

2-43  [notification] report must be submitted within 6 months after the order and

2-44  at 6-month intervals thereafter. If the [administrator’s] opinion of the

2-45  administrator or his designee about the defendant is that he is not of

2-46  sufficient mentality to understand the nature of the charge against him and

2-47  assist in his own defense, the administrator or his designee shall also

2-48  include in the [notice] report his opinion whether:

3-1    (a) There is a substantial probability that the defendant will attain

3-2  competency to stand trial or receive pronouncement of judgment in the

3-3  foreseeable future; and

3-4    (b) The defendant is at that time a danger to himself or to society.

3-5    3.  The [notice may be informal, but] report must contain:

3-6    (a) The name of the defendant and the county or city to which he may

3-7  be returned for further court action.

3-8    (b) The circumstances under which he was committed to the custody of

3-9  the administrator or his designee and the duration of his hospitalization, or

3-10  the circumstances under which he was ordered to report to the

3-11  administrator or his designee as an outpatient.

3-12    Sec. 4.  NRS 178.455 is hereby amended to read as follows:

3-13    178.455  1.  [The judge, upon receiving the written notice of the

3-14  administrator of the division of mental health and developmental services

3-15  of the department of human resources that the defendant is of sufficient

3-16  mentality to be placed upon trial or receive pronouncement of judgment, or

3-17  that he is not of sufficient mentality and there is no substantial probability

3-18  that he will attain competency to stand trial or receive pronouncement of

3-19  judgment in the foreseeable future, shall, except as otherwise provided in

3-20  subsection 4, within a period not to exceed 20 days, impanel a sanity

3-21  commission composed of three persons, each of whom is a psychiatrist or

3-22  psychologist, but not including members of the medical staff of the

3-23  division of mental health and developmental services, who, in the opinion

3-24  of the judge, are qualified to examine the person with respect to his mental

3-25  condition.

3-26    2.  The sanity commission shall, within 20 days, examine the person

3-27  designated by the judge in the order impaneling the commission, at such

3-28  convenient place as the commission may direct. Upon the completion of

3-29  the examination, the commission shall return to the judge its reports in

3-30  writing, which must be signed by the respective members of the

3-31  commission and contain, without limitation, specific findings and opinion

3-32  upon:] Except as otherwise provided for persons charged with or

3-33  convicted of a misdemeanor, the administrator of the division of mental

3-34  health and developmental services of the department of human resources

3-35  or his designee shall appoint a licensed psychiatrist and a licensed

3-36  psychologist from the treatment team to evaluate the defendant. The

3-37  administrator or his designee shall also appoint a third evaluator who

3-38  must be a licensed psychiatrist or psychologist and not a member of the

3-39  treatment team. Upon the completion of the evaluation and treatment of

3-40  the defendant, the administrator or his designee shall report to the court

3-41  in writing his specific findings and opinion upon:

3-42    (a) Whether the person is of sufficient mentality to understand the

3-43  nature of the offense charged;

3-44    (b) Whether the person is of sufficient mentality to aid and assist

3-45  counsel in the defense of the offense charged, or to show cause why

3-46  judgment should not be pronounced; and

3-47    (c) If the person is not of sufficient mentality pursuant to paragraphs (a)

3-48  and (b) to be placed upon trial or receive pronouncement of judgment,

4-1  whether there is a substantial probability that he will attain competency in

4-2  the foreseeable future.

4-3    [3.  Members of the sanity commission shall report individually.

4-4  Copies of the reports]

4-5    2.  A copy of the report must be [sent to] :

4-6    (a) Maintained by the administrator of the division of mental health and

4-7  developmental services [to be] or his designee and incorporated in the

4-8  medical record of the person[,] ; and

4-9    (b) Sent to the office of the district attorney[,] and to the counsel for the

4-10  outpatient or person committed.

4-11    [4.] 3. In the case of a person charged with or convicted of a

4-12  misdemeanor, the judge shall, upon receipt of the [notice] report set forth

4-13  in NRS 178.450 from the administrator of the division of mental health and

4-14  developmental services[:] or his designee:

4-15    (a) Send a copy of the [administrator’s notice] report by the

4-16  administrator or his designee to the prosecuting attorney and to the

4-17  defendant’s counsel;

4-18    (b) [Without the assistance of a sanity commission, hold] Hold a

4-19  hearing, if one is requested within 10 days after the [notice] report is sent

4-20  pursuant to paragraph (a), at which the attorneys may examine the

4-21  administrator or his designee or the members of the defendant’s

4-22  treatment team on [his determination;] the determination of the report;

4-23  and

4-24    (c) Within 10 days after the hearing, if any, or 20 days after the [notice]

4-25  report is sent if no hearing is requested, enter his finding of competence or

4-26  incompetence in the manner set forth in subsection [3] 4 of NRS 178.460.

4-27    Sec. 5.  NRS 178.460 is hereby amended to read as follows:

4-28    178.460  1.  If requested by the district attorney or counsel for the

4-29  defendant within 10 days after the [reports of the sanity commission are]

4-30  report by the administrator or his designee is sent to them, the judge shall

4-31  hold a hearing within 10 days after the request at which the district attorney

4-32  and the defense counsel may examine the members of the [sanity

4-33  commission] treatment team on their [reports.] report.

4-34    2.  If the judge orders the appointment of a licensed psychiatrist or

4-35  psychologist who is not employed by the division of mental health and

4-36  developmental services of the department of human resources to perform

4-37  an additional evaluation and report concerning the defendant, the cost of

4-38  the additional evaluation and report is a charge against the county.

4-39    3.  Within 10 days after the hearing or 20 days after the [reports are]

4-40  report is sent, if no hearing is requested, the judge shall make and enter his

4-41  finding of competence or incompetence, and if he finds the defendant to be

4-42  incompetent:

4-43    (a) Whether there is substantial probability that the defendant will attain

4-44  competency to stand trial or receive pronouncement of judgment in the

4-45  foreseeable future; and

4-46    (b) Whether the defendant is at that time a danger to himself or to

4-47  society.

4-48    [3.] 4. If the judge finds the defendant:

5-1    (a) Competent, the judge shall, within 10 days, forward his finding to

5-2  the prosecuting attorney and counsel for the defendant. Upon receipt

5-3  thereof, the prosecuting attorney shall notify the sheriff of the county or

5-4  chief of police of the city that the defendant has been found competent and

5-5  [arrange] prearrange with the facility for the return of the defendant to that

5-6  county or city for trial upon the offense there charged or the

5-7  pronouncement of judgment, as the case may be. [The defendant must not

5-8  be returned more than 30 days before the date set for the trial or

5-9  pronouncement of judgment which must be within 60 days after the receipt

5-10  of the findings of the sanity commission, or if the case is a misdemeanor,

5-11  within 60 days after the judge received the notice from the administrator

5-12  pursuant to subsection 1 of NRS 178.455.]

5-13    (b) Incompetent, but there is a substantial probability that he will attain

5-14  competency to stand trial or receive pronouncement of judgment in the

5-15  foreseeable future and finds that he is dangerous to himself or to society,

5-16  the judge shall recommit the defendant.

5-17    (c) Incompetent, but there is a substantial probability that he will attain

5-18  competency to stand trial or receive pronouncement of judgment in the

5-19  foreseeable future and finds that he is not dangerous to himself or to

5-20  society, the judge shall order that the defendant remain an outpatient or be

5-21  transferred to the status of an outpatient under the provisions of NRS

5-22  178.425.

5-23    (d) Incompetent, with no substantial probability of attaining

5-24  competency in the foreseeable future, the judge shall order the defendant

5-25  released from custody or if the defendant is an outpatient, released from his

5-26  obligations as an outpatient if, within 10 days, a petition is not filed to

5-27  commit the person pursuant to NRS 433A.200. After the initial 10 days,

5-28  the defendant may remain an outpatient or in custody under the provisions

5-29  of this chapter only as long as the petition is pending unless the defendant

5-30  is involuntarily committed pursuant to chapter 433A of NRS.

5-31    [4.] 5. No person who is committed under the provisions of this

5-32  chapter may be held in the custody of the administrator of the division of

5-33  mental health and developmental services of the department of human

5-34  resources or his designee longer than the longest period of incarceration

5-35  provided for the crime or crimes with which he is charged. Upon expiration

5-36  of the period, the defendant must be returned to the committing court for a

5-37  determination as to whether or not involuntary commitment pursuant to

5-38  chapter 433A of NRS is required.

5-39    Sec. 6.  NRS 353.264 is hereby amended to read as follows:

5-40    353.264  1.  The reserve for statutory contingency account is hereby

5-41  created in the state general fund.

5-42    2.  The state board of examiners shall administer the reserve for

5-43  statutory contingency account, and the money in the account must be

5-44  expended only for:

5-45    (a) The payment of claims which are obligations of the state pursuant to

5-46  NRS 41.03435, 41.0347, 176.485, 179.310, 212.040, 212.050, 212.070,

5-47  214.040, 281.174, 282.290, 282.315, 288.203, 293.253, 293.405, 353.120,

5-48  353.262, 412.154 and 475.235;

6-1    (b) The payment of claims which are obligations of the state pursuant

6-2  to:

6-3       (1) Chapter 472 of NRS arising from operations of the division of

6-4  forestry of the state department of conservation and natural resources

6-5  directly involving the protection of life and property; and

6-6       (2) NRS 7.155, 34.750, 176A.640, [178.465,] 179.225, 213.153 and

6-7  293B.210,

6-8  but the claims must be approved for the respective purposes listed in this

6-9  paragraph only when the money otherwise appropriated for those purposes

6-10  has been exhausted;

6-11    (c) The payment of claims which are obligations of the state pursuant to

6-12  NRS 41.0349 and 41.037, but only to the extent that the money in the fund

6-13  for insurance premiums is insufficient to pay the claims; and

6-14    (d) The payment of claims which are obligations of the state pursuant to

6-15  NRS 535.030 arising from remedial actions taken by the state engineer

6-16  when the condition of a dam becomes dangerous to the safety of life or

6-17  property.

6-18    Sec. 7.  NRS 178.465 is hereby repealed.

6-19    Sec. 8.  This act becomes effective upon passage and approval.

 

6-20  TEXT OF REPEALED SECTION

 

6-21    178.465  Compensation of members of sanity commission. The

6-22   members of the sanity commission are only entitled to receive

6-23   compensation for conducting an examination of and preparing reports

6-24   regarding the person designated by the judge in the order impaneling the

6-25   commission. In consultation with the presiding judge of the judicial

6-26   district from which the order to impanel the commission was issued or, if

6-27   the district has no presiding judge, a judge designated by mutual consent

6-28   of the district judges of that district, the administrator of the division of

6-29   mental health and developmental services of the department of human

6-30   resources shall fix a reasonable rate of compensation for the members of

6-31   the commission. The compensation is a charge against and must be paid

6-32   by the division upon an order therefor signed by the judge who impaneled

6-33   the commission and submitted to the administrator. The administrator

6-34   shall submit a claim for payment of the order in the manner provided by

6-35   law. After the appropriation for this purpose is exhausted, money must be

6-36   allocated to the division out of the reserve for statutory contingency

6-37   account upon approval by the state board of examiners, for payment of the

6-38   compensation.

 

6-39  H