A. Whenever a district court finds it necessary to obtain an evaluation of the mental condition of a defendant in a criminal case, the court shall order an evaluation from a qualified professional available to the local facilities of the court or from a qualified professional at a local mental health center designated by the secretary of health, and whenever the court finds it desirable to use state personnel or facilities to assist in making the evaluation, the court shall in its order for an evaluation require service upon the secretary of health of the court's order for evaluation. The secretary of health shall arrange for a qualified professional furnished by the state to visit the defendant in local facilities available to the court or shall designate suitable available facilities. If the secretary of health designates a local mental health center or a state facility for the defendant's evaluation within forty-eight hours of service of the evaluation order, the secretary of health shall notify the court of such designation. The court shall then enter an appropriate transport order which also provides for the return of the defendant to the local facilities of the court. The defendant shall be transported by the county to facilities designated by the secretary of health for the purpose of making an evaluation. Misdemeanor defendants shall be evaluated locally.

B. If the secretary of health elects to have the defendant retained at the district court's local facilities, the qualified professional furnished by the state shall visit the local facilities not later than two weeks from the time of service of the court's evaluation order upon the secretary of health and:

(1) after the evaluation of the defendant is completed, the qualified professional furnished by the state shall be available for deposition to declare his findings. The usual rules of evidence governing the use and admission of the deposition shall prevail; and

(2) if the secretary of health finds that the qualified professional will be unable to initiate the evaluation within two weeks from the time of service of the court's evaluation order upon the secretary of health, the secretary of health shall call upon the county sheriff of the county in which the defendant is incarcerated and have the defendant transported to facilities designated by the secretary of health for the purpose of conducting the evaluation.

C. If the secretary of health elects to have the defendant transported to the facilities designated by the secretary of health for the purpose of evaluation, the evaluation shall be commenced as soon as possible after the admission of the defendant to the facility, but, in no event, shall the evaluation be commenced later than seventy-two hours after the admission. The defendant, at the conclusion of the evaluation, shall be returned by the county sheriff to the local facilities of the court upon not less than three days' notice. After the evaluation is completed, the qualified professional furnished by the state shall be available for deposition to declare his findings. The usual rules of evidence governing the use and admissibility of the deposition shall prevail.

D. Documents reasonably required by the secretary of health to show the medical and forensic history of the defendant shall be furnished by the court when required.

E. After an evaluation and upon reasonable notice, the district court may commit a dangerous defendant charged with a felony pursuant to Section 31-9-1.2 NMSA 1978 or may dismiss the charges without prejudice and refer the defendant to the district attorney for possible initiation of proceedings under the Mental Health and Developmental Disabilities Code. A defendant so committed under the Mental Health and Developmental Disabilities Code shall be treated as any other patient committed involuntarily. Whenever the secretary of health determines that he does not have the ability to meet the medical needs of a defendant committed pursuant to Sections 31-9-1.2 through 31-9-1.5 NMSA 1978, the secretary or his designee shall serve upon the district court and the parties a written certification of the lack of ability to meet the medical needs of the defendant. The court shall set a hearing upon the certification within ten days of its filing and shall, after the hearing, make a determination regarding disposition of the criminal case. When deemed by the secretary of health to be medically appropriate, a dangerous defendant committed pursuant to Section 31-9-1.2 NMSA 1978 may be returned by the county sheriff to the custody of the court upon not less than three days' notice. The secretary shall provide written notification to the court and parties within three days of the defendant's discharge.

F. All acts to be performed by the secretary of health pursuant to provisions of this section may be performed by the secretary's designee.

History: 1953 Comp., § 34-2-26, enacted by Laws 1976, ch. 43, § 1; 1977, ch. 253, § 45; 1989, ch. 94, § 2; 1989, ch. 128, § 1; 1993, ch. 240, § 7; 1993, ch. 249, § 7; 1999, ch. 149, § 6.

Cross references. — For the Children's Mental Health and Developmental Disabilities Act, see 32A-6A-1 NMSA 1978.

For procedures relating to evaluation of persons charged with criminal offenses, see Rules 5-602 and 7-507 NMRA. See also 31-9-1.5 NMSA 1978.

For the evaluation of children accused of committing delinquent acts, see Rule 10-241 NMRA.

The 1999 amendment, effective June 18, 1999, deleted "or of a defendant found incompetent to proceed in a criminal case in a proceeding for involuntary hospitalization pursuant to the Mental Health and Development Disabilities Code" following "a criminal case" in Subsection A, substituted "shall" for "will" in Subsection B, deleted "then" following "secretary of health" in Subsection B(2), in Subsection E inserted "charged with a felony" in the first sentence and added the third, fourth and sixth sentences, and inserted "provisions of" in Subsection F.

The 1993 amendment, effective June 18, 1993, rewrote the section to the extent that a detailed comparison was impracticable. Laws 1993, ch. 240, § 7 and Laws 1993, ch. 249, § 7 enacted identical amendments to this section. The section was set out as amended by Laws 1993, ch. 249, § 7. See 12-1-8 NMSA 1978.

The 1989 amendment, effective June 16, 1989, substituted "secretary of health and environment" for "secretary of the health and environment department" in the first sentence of Subsection A and in Subsection F; added the last sentence of Subsection A; and made minor stylistic changes in Subsection B. Laws 1989, ch. 94, § 2, effective July 1, 1989, also amended this section. The section was set out as amended by Laws 1989, ch. 128, § 1. See 12-1-8 NMSA 1978.

No statutory duty of medical professionals to third party. — Where the decedent was struck and killed by an automobile driven by the perpetrator during a high-speed chase with police officers; the perpetrator had an extensive history of psychiatric illness; several months before the decedent was killed, the perpetrator had been charged with a misdemeanor assault in municipal court; at a competency hearing in district court, the parties stipulated that the perpetrator was not competent to stand trial and the misdemeanor assault charge was remanded to municipal court for dismissal; at the competency hearing, the state intervened to seek an evaluation of the perpetrator for a civil commitment; the district court ordered that the perpetrator be transported to the hospital for evaluation; the doctor who performed the evaluation discharged the perpetrator after five days, because the perpetrator did not meet the criteria for continued commitment; the transport order did not require that the perpetrator be returned to the facilities of the district court after discharge from the hospital; the perpetrator was not transported to the hospital in connection with a criminal matter; there was no finding by the district court that the perpetrator was a danger to others; and the decedent was killed twelve days after the perpetrator was discharged from the hospital, the hospital and the doctor did not have a statutory duty to the decedent under 43-1-1 NMSA 1978 either to detain the perpetrator beyond the time required for the evaluation or to return the perpetrator to the court facilities. Ross v. City of Las Cruces, 2010-NMCA-015, 148 N.M. 81, 229 P.3d 1253.

Civil commitment of mentally retarded, dangerous defendant. — Defendants with mental retardation who are dangerous, incompetent, and without a substantial probability of gaining competence may not be criminally committed under the New Mexico Mental Illness and Competency Code, 39-1-1 NMSA 1978 et seq., but may be civilly committed under the Mental Health and Developmental Disabilities Act at the discretion of the district court and the district attorney. State v. Trujillo, 2009-NMSC-012, 146 N.M. 14, 206 P.3d 125.

Temporary restraint not violative of due process. — Persons may be deprived of their liberty for the good of society or themselves. This is not a deprivation of due process of law, but a temporary restraint on liberty, based on the extent of the illness, the need for treatment and hospitalization, as well as the protection of society. State v. Sanchez, 1969-NMSC-090, 80 N.M. 438, 457 P.2d 370, appeal dismissed, 396 U.S. 276, 90 S. Ct. 588, 24 L. Ed. 2d 469 (1970).

Prescription of judicial methods deemed proper legislative function. — The right to prescribe, within constitutional bounds, a judicial method of determining a person to be a lunatic or non compos mentis, and regulating the custody and control of his person and property, is a proper legislative function. State v. Sanchez, 1969-NMSC-090, 80 N.M. 438, 457 P.2d 370, appeal dismissed, 396 U.S. 276, 90 S. Ct. 588, 24 L. Ed. 2d 469 (1970).

Strict statutory compliance required. — Cases conducted for the purpose of determining the sanity of a citizen are required to be in strict compliance with statutory requirements. State v. Sanchez, 1969-NMSC-090, 80 N.M. 438, 457 P.2d 370, appeal dismissed, 396 U.S. 276, 90 S. Ct. 588, 24 L. Ed. 2d 469 (1970).

Permitting court-appointed psychologist to attend independent evaluation of defendant was not an abuse of discretion. — Where defendant was charged as a serious youthful offender with two alternative counts of first-degree felony murder, and where the state requested, and the district court allowed, an independent evaluation of defendant's alleged mental retardation following a court-appointed psychologist's recommendation that defendant be found incompetent to stand trial due to mental retardation, the district court did not abuse its discretion in granting a defense request permitting the court-appointed psychologist to attend the state's independent evaluation, because the district court's decision to order a second evaluation was entirely discretionary and, due to the unnecessary delay that had already occurred in the case, the court-appointed psychologist's attendance would ensure that the proceedings were expedited. State v. Linares, 2017-NMSC-014.

District court did not abuse its discretion in finding defendant incompetent. — Where defendant was charged as a serious youthful offender with two alternative counts of first-degree felony murder, the district court did not abuse its discretion in finding defendant incompetent to stand trial based on a court-appointed psychologist's testimony that defendant had an IQ of 68, that defendant had mental retardation, that the state failed to overcome the presumption that an accused with an IQ below 70 has mental retardation, and based on evidence adduced at the mental retardation hearing that defendant was incapable of consulting with her attorney with a reasonable degree of rational understanding, that she held a fundamentally incoherent view of the nature of the proceedings that were to be brought against her, and that she would not comprehend the reasons for punishment if she were convicted. State v. Linares, 2017-NMSC-014.

Procedural requirements were met. — Where defendant was charged as a serious youthful offender with two alternative counts of first-degree felony murder, the proceedings below complied with the mandates of 31-9-1.6 NMSA where the district court found that defendant was incompetent to stand trial due to mental retardation, that there was not a substantial probability that defendant would become competent within a reasonable period of time not to exceed nine months, and that defendant was a danger to others, and where the district court directed the department of health (DOH) to commence civil commitment proceedings under this section, and where DOH filed a petition with the district court for the involuntary commitment of defendant prompting the district court to commit defendant to the DOH for a period of habilitation not to exceed six months. State v. Linares, 2017-NMSC-014.

Code does not distinguish between private and public mental health facilities in the method of commitment. The procedures are the same. 1988 Op. Att'y Gen. No. 88-02.

Law reviews. — For note, "Statutory Proposals for Expanding Outpatient Treatment in New Mexico," see 2 Nat. Res. J. 153 (1962).

For note, "Implementing the Right to Treatment for Involuntarily Confined Mental Patients: Wyatt v. Stickney," see 3 N.M.L. Rev. 338 (1973).

For note, "Constitutional Problems of Civil Commitment Procedures in New Mexico," see 6 N.M.L. Rev. 113 (1975).

For article, "Disclosure of Medical Information - Criminal Prosecution of Medicaid Fraud in New Mexico," see 9 N.M.L. Rev. 321 (1979).

For article, "Treating Children Under the New Mexico Mental Health and Developmental Disabilities Code," see 10 N.M.L. Rev. 279 (1980).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 49, 794 et seq.

When finding or adjudication as to one's mental condition by official or body not clearly judicial is conclusive evidence or has effect of a judgment as regards legal mental status, 108 A.L.R. 47.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity, 2 A.L.R.4th 934.