N.M. R. Crim. P. Dist. Ct. 5-602.3

As amended through May 8, 2024

Rule 5-602.3 - Incompetency due to developmental or intellectual disability

A.Definitions. The following definitions shall apply for purposes of this rule.

(1)Department. "Department" means the New Mexico Department of Health.

(2)Developmental or intellectual disability. Developmental or intellectual disability means significant subaverage intellectual functioning existing concurrently with deficits in adaptive behavior. An intelligence quotient of seventy (70) or below on a reliably administered intelligence quotient test shall be presumptive evidence of developmental or intellectual disability.

B.Hearing to determine developmental or intellectual disability. If a defendant is charged with a felony and found incompetent to stand trial, on motion of the defense, the court shall hold a hearing to determine if the defendant's incompetency is due to developmental or intellectual disability. The purpose of the hearing shall be to determine whether there is a preponderance of the evidence of the following:

(1) the defendant has developmental or intellectual disability; and

(2) there is not a substantial probability that the defendant will become competent to proceed in a criminal case within a reasonable time, not to exceed nine (9) months from the original finding of incompetency.

C.Department evaluation; notice of Department's findings. If the court makes the findings set forth in Paragraph B of this rule, the court shall order the Department to perform an evaluation within sixty (60) days of service of the order to determine whether the defendant presents a likelihood of serious harm to self or others. At the completion of the evaluation, the Department shall promptly notify the court and the parties of its findings.

D.Proceedings under Chapter 43, Article 1 NMSA 1978. If the evaluation ordered under Paragraph C of this rule results in a finding by the Department that the defendant presents a likelihood of serious harm to self or others,

(1) the Department shall commence proceedings under Chapter 43, Article 1 NMSA 1978 within sixty (60) days of the evaluation if the defendant has been charged in the initial proceedings with one or more of the following offenses:

(a) murder in the first degree;

(b) first degree criminal sexual penetration;

(c) criminal sexual contact of a minor; or

(d) arson; or

(2) the Department may commence proceedings under Chapter 43, Article 1 NMSA 1978 within sixty (60) days of the evaluation if the defendant has not been charged with an offense enumerated in Subparagraph (1) of this paragraph.

E.Notice.

(1) The Department shall notify the court if it commences proceedings under Chapter 43, Article 1 NMSA 1978 and Paragraph D of this rule.

(2) The Department shall notify the court as soon as practicable if the Department does not intend to commence proceedings under Paragraph (D)(2) of this rule.

F.Disposition of criminal charges. Unless the court dismisses the charges at an earlier time, the criminal charges against the defendant shall be dismissed without prejudice on the first of the following to occur:

(1) the hearing under Chapter 43, Article 1 NMSA 1978; or

(2) the expiration of fourteen (14) months from the court's initial determination that the defendant is incompetent to proceed in a criminal case.

G.Automatic sealing of court records. Any motion, response, assessment, treatment plan, report, or other paper filed under this rule shall be automatically sealed without motion or order of the court as provided in Rule 5-123(C)(2) NMRA. An order issued under this rule shall not be sealed except on motion and order under Rule 5-123 NMRA.

N.M. R. Crim. P. Dist. Ct. 5-602.3

Approved by Supreme Court Order No. 18-8300-023, effective for all cases filed on or after February 1, 2019; as amended by Supreme Court Order No. S-1-RCR-2023-00053, effective for all cases pending or filed on or after 2/23/2024.

Committee commentary. - Until June 16, 2023, NMSA 1978, Section 31-9-1.6 (1999, amended 2023) used a disfavored term. Old cases used that term in deference to the statute, despite the term not being otherwise acceptable. With the amendment of the statute, this rule has been updated to use the appropriate term of developmental or intellectual disability.

The legal definition of developmental or intellectual disability under this rule and Section 31-9-1.6(E) is not equivalent to a clinical finding of developmental or intellectual disability. See State v. Trujillo, 2009-NMSC-012, ¶ 13, 146 N.M. 14, 206 P.3d 125. A clinical determination of intellectual or developmental disability requires a finding that the issue arose before a person's eighteenth birthday. See id. ¶ 10 (citing Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders-IV-TR 41(2000)). Age of onset, however, is not a factor in a legal determination of developmental or intellectual disability for purposes of incompetency. See Trujillo, 2009-NMSC-012, ¶ 12 ("[T]he Legislature's decision to exclude the age of onset factor is logical given that what is legally relevant are the symptoms probative of culpability at the time of the alleged crime and coherence at the time of trial, not the age at which those symptoms started to affect the individual.").

The discretion given to the Department under Subparagraph (D)(2) of this rule is consistent with Section 31-9-1.6(C) as it was originally enacted. Before it was amended in 1999, Subsection 31-9-1.6(C) provided as follows:

C. If the department evaluation results in a finding that the defendant presents a likelihood of serious harm to himself or a likelihood of serious harm to others, within sixty days of the department's evaluation the department:

(1) shall commence proceedings under Chapter 43, Article 1 NMSA 1978 if the defendant was charged with first degree homicide, first degree sexual penetration, criminal sexual contact of a minor or arson in the initial proceedings, and the court presiding over the initial proceedings shall enter a finding that the respondent presents a likelihood of harm to others; or

(2) may commence proceedings under Chapter 43, Article 1 NMSA 1978 if the defendant was charged with any crime other than first degree homicide, first degree sexual penetration, criminal sexual contact of a minor or arson in the initial proceedings from which he was referred under this section to the department.

1997 N.M. Laws, ch. 153. Although the 1999 amendments to Section 31-9-1.6 deleted Subsection (C)(2), see 1999 N.M. Laws, ch. 149, the Supreme Court has observed that the deletion "is not dispositive of legislative intent and may only represent a housekeeping deletion of a provision the Legislature deemed superfluous." Trujillo, 2009-NMSC-012, ¶ 27.

Subparagraph (D)(2) of the rule therefore clarifies that the Department has discretion to initiate proceedings under NMSA 1978, Chapter 43, Article 1 for a defendant who has not been charged with an enumerated offense when the Department's evaluation results in a finding that the defendant presents a likelihood of serious harm to self or others. See Trujillo, 2009-NMSC-012, ¶ 28 (holding the 1999 amendments to Section 31-9-1.6 were not "intended to restrict the State from civilly committing defendants . . . accused of a crime other than the four enumerated in Section 31-9-1.6(C)").

Courtroom closure

Hearings under this rule may be closed only on motion and order of the court. See Rule 5-124(A) NMRA ("All courtroom proceedings shall be open to the public unless the courtroom is closed by an order of the court entered under this rule."); see also Rule 5-124 committee commentary ("[I]f a party believes that courtroom closure is warranted for any reason, including the protection of confidential information, such party may file a motion for courtroom closure under Subparagraph (B)(2) of this rule.").

[Approved by Supreme Court Order No. 18-8300-023, effective for all cases filed on or after February 1, 2019; as amended by Supreme Court Order No. S-1-RCR-2023-00053, effective for all cases pending or filed on or after February 23, 2024.]