NM Stat § 31-9-1.6 (2021)
2021 New Mexico Statutes|Chapter 31 - Criminal Procedure|Article 9 - Mental Illness and Competency|Section 31-9-1.6 - Hearing to determine mental retardation.

A. Upon motion of the defense requesting a ruling, the court shall hold a hearing to determine whether the defendant has mental retardation as defined in Subsection E of this section. B. If the court finds by a preponderance of the evidence that the defendant has mental retardation and that there is not a substantial probability that the defendant will become competent to proceed in a criminal case within a reasonable period of time not to exceed nine months from the date of the original finding of incompetency, then no later than sixty days from notification to the secretary of health or his designee of the court's findings the department of health shall perform an evaluation to determine whether the defendant presents a likelihood of serious harm to himself or a likelihood of serious harm to others. C. If the department of health 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 shall commence proceedings pursuant to Chapter 43, Article 1 NMSA 1978 if the defendant was charged with murder in the first degree, first degree criminal 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. D. The criminal charges shall be dismissed without prejudice after the hearing pursuant to Chapter 43, Article 1 NMSA 1978 or upon expiration of fourteen months from the court's initial determination that the defendant is incompetent to proceed in a criminal case. E. As used in this section, "mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior. An intelligence quotient of seventy or below on a reliably administered intelligence quotient test shall be presumptive evidence of mental retardation. History: 1978 Comp., § 31-9-1.6, enacted by Laws 1997, ch. 153, § 1; 1999, ch. 149, § 5. ANNOTATIONSThe 1999 amendment, effective June 18, 1999, substituted "to determine whether the defendant has mental retardation as defined in Subsection E of this section" for "prior to one year after a defendant was determined to be incompetent to stand trial" in Subsection A; substituted "has mental retardation and that there is not a substantial probability that the defendant will become competent to proceed in a criminal case within a reasonable period of time not to exceed nine months from the date of the original finding of incompetency, then no later than sixty days from notification to the secretary of health or his designee of the court's findings" for "is mentally retarded, then no later than one year from the court's initial determination that the defendant is incompetent to stand trial" in Subsection B; in Subsection C, inserted "murder in the" following "charged with", and deleted "homicide" preceding "first degree", inserted "criminal" following "first degree", and deleted former Paragraph (2), which read, "may commence proceedings pursuant to 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 proceeding from which he was referred pursuant to this section to the department"; substituted "proceed in a criminal case" for "stand trial" in Subsection D; and substituted "mental retardation" for "mentally retarded" in Subsection E. Age of onset is irrelevant. — Where the defendant had an extreme mental condition resulting from self-inflicted carbon monoxide poisoning that occurred when the defendant was twenty-six years of age, the district court's determination that the defendant had mental retardation was proper. State v. Trujillo, 2009-NMSC-012, 146 N.M. 14, 206 P.3d 125, aff'g, 2007-NMCA-056, 141 N.M. 668, 160 P.3d 577. Commitment of defendants who are accused of lesser crimes. — Defendants with mental retardation who are dangerous, incompetent and without substantial probability of gaining competence and who are not charged with first degree murder, first degree criminal sexual penetration, criminal sexual contact of a minor or arson may not be criminally committed, though they may be civilly committed 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, aff'g, 2007-NMCA-056, 141 N.M. 668, 160 P.3d 577. Where the defendant was charged with attempted first degree murder, aggravated burglary, aggravated battery and tampering with evidence, and where the district court found that the defendant had mental retardation and was dangerous, incompetent, and without a substantial probability of gaining competence, the defendant may not be criminally committed, though the defendant may be civilly committed 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, aff'g, 2007-NMCA-056, 141 N.M. 668, 160 P.3d 577. Age of the onset of mental retardation is not an element of the definition of mental retardation and is irrelevant in a determination of mental retardation. State v. Trujillo, 2007-NMCA-056, 141 N.M. 668, 160 P.3d 577, aff'd, 2009-NMSC-012, 146 N.M. 14, 206 P.3d 125. Section 31-9-1.6 NMSA 1978 is the sole source of authority to confine incompetent defendants with mental retardation who are dangerous. State v. Trujillo, 2007-NMCA-056, 141 N.M. 668, 160 P.3d 577, aff'd, 2009-NMSC-012, 146 N.M. 14, 206 P.3d 125. Statutory presumption of mental retardation. — A reliably administered IQ test resulting in an IQ of seventy or below shall be presumptive evidence of mental retardation; therefore, an IQ test of seventy or below creates a statutory presumption that defendant possesses subaverage general intellectual functioning concurrently with deficits in adaptive behavior. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008. Where defendant was charged with numerous counts of attempted first-degree murder and other serious charges related to an incident where he trapped four adults and two children in a trailer and threatened them with firearms over several hours, and where defendant consistently scored below seventy on all his intelligence assessments over the course of a year and a half, and where one doctor found that defendant had a full-scale IQ of sixty-two, and two other doctors found defendant to be in the "mild mental retardation" range with scores in the lowest percentile on verbal comprehension, the evidence demonstrated that defendant had mental retardation as a matter of law. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008. Defendant met the statutory presumption of mental retardation. — Where defendant was arrested for aggravated battery after allegedly attacking his mother with a pair of garden shears, and where defendant moved for a hearing pursuant to this section to determine whether he was mentally retarded and therefore subject only to civil commitment and not criminal prosecution, the district court abused its discretion in determining that defendant failed to establish by a preponderance of the evidence that he was mentally retarded as defined by Subsection E of this section, because defendant met the statutory presumption of mental retardation by showing that he had an IQ of seventy or less and that the test used to determine that IQ was reliably administered. Once the presumption of mental retardation is established, the burden shifts to the state to prove by a preponderance of the evidence that defendant does not have mental retardation, either by establishing that defendant does not have significantly subaverage general intellectual functioning or that he does not have deficits in his adaptive behavior, or both. State v. Jacob F., 2019-NMCA-042.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 this section 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 43-1-1 NMSA 1978, 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.