ENROLLED
Senate Bill No. 398
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning,
Hunter, Kessler, Oliverio, Ross, Schoonover,
Snyder, Buckalew and Deem)
____________
[Passed March 14, 1998; in effect ninety days from passage.]
_____________
AN ACT to amend and reenact sections two and four, article six-a,
chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
the commitment of certain persons found incompetent to stand
trial; determination of mental competency to stand trial;
hearings procedure; findings required; jurisdiction of court;
release; and disclosure from court jurisdiction.
Be it enacted by the Legislature of West Virginia:
That sections two and four, article six-a, chapter twenty- seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 6A. COMMITMENT OF PERSONS CHARGED OR CONVICTED OF A CRIME
.
§27-6A-2. Hearing on competency to stand trial; findings.
(a) At a hearing to determine a defendant's competency to
stand trial, the defendant shall be present and he or she shall
have the right to be represented by counsel and introduce evidence
and cross-examine witnesses. The defendant shall be afforded
timely and adequate notice of the issues at the hearing and shall
have access to a summary of the medical evidence to be presented by
the state. The defendant shall have the right to an examination by
an independent expert of his or her choice and testimony from such
expert as a medical witness on his or her behalf. All rights
generally afforded a defendant in criminal proceedings shall be
afforded to a defendant in such competency proceedings except trial
by jury.
(b) At the termination of such hearing the court of record
shall make a finding of fact upon a preponderance of the evidence
as to the defendant's competency to stand trial based on whether or
not the defendant is capable of participating substantially in his
or her defense and understanding the nature and consequences of a
criminal trial. If the defendant is found competent, the court of
record shall forthwith proceed with the criminal proceedings. If
the defendant is found incompetent to stand trial, the court of
record shall upon the evidence make further findings as to whether
or not there is a substantial likelihood that the defendant will
attain competency within the next ensuing six months, and if the
court of record so finds, the defendant may be committed to a mental health facility for an improvement period not to exceed six
months. If requested by the chief medical officer of the mental
health facility on the grounds that additional time is necessary
for the defendant to attain competency, the court of record may,
prior to the termination of the six-month period, extend the period
for an additional three months. Within ten days of the termination
of such period, the court of record shall ascertain by hearing in
accordance with subsection (a) of this section whether or not the
defendant has attained competency to stand trial.
(c) If the defendant has been indicted or charged with a
misdemeanor or felony in which the misdemeanor or felony does not
involve an act of violence against a person and is found to be
incompetent to stand trial with no substantial likelihood of
obtaining competency, or if after such improvement period the
defendant is found to be incompetent to stand trial, the criminal
charges shall be dismissed. The dismissal order may be stayed for
ten days to allow civil commitment proceedings to be instituted
pursuant to article five of this chapter.
(d) If the defendant has been indicted or charged with a
misdemeanor or felony in which the misdemeanor or felony does
involve an act of violence against a person and upon hearing: (1)
The defendant is found initially to be incompetent to stand trial
with no substantial likelihood of obtaining competency and is found
not to be a danger to self or others; or (2) after an improvement period pursuant to subsection (b) of this section, the defendant is
found to be incompetent to stand trial and is found not to be a
danger to self or others, then the court shall maintain
jurisdiction over the defendant.
(e) If the defendant has been indicted or charged with a
misdemeanor or felony in which the misdemeanor or felony does
involve an act of violence against a person and, upon hearing: (1)
The defendant is found initially to be incompetent to stand trial
with no substantial likelihood of obtaining competency and is found
to be a danger to self or others; or (2) after an improvement
period pursuant to subsection (b) of this section, the defendant is
found to be incompetent to stand trial and is found to be a danger
to self or others, then the court shall maintain jurisdiction over
the defendant and shall commit the defendant to a mental health
facility under the authority of the department of health and human
resources. The defendant's supervising physician or psychologist
shall cause the defendant's competency to stand trial and
dangerousness to self or others to be reviewed every six months
during the period of his or her inpatient hospitalization.
(f) If the defendant has been indicted or charged with a
misdemeanor or felony in which the misdemeanor or felony does
involve an act of violence against a person, upon notice from the
medical director of the mental health facility that the defendant
no longer constitutes a danger to self or others along with an alternative disposition plan which sets forth in detail a treatment
plan for the defendant designed to allow his or her release without
endangering the public, the court shall promptly conduct a hearing.
The clerk shall give notice of the hearing to the prosecuting
attorney and the victim or next of kin of the victim of the offense
for which the person was committed. The burden shall be on the
victim or next of kin of the victim to keep the court apprised of
that person's current mailing address.
After hearing, the court may order the release from
hospitalization of a defendant found incompetent to stand trial due
to mental illness, addiction or retardation prior to the expiration
of the court's jurisdiction only when the court finds that the
defendant is no longer a danger to self or others: Provided, That
a defendant may be released from inpatient hospitalization by the
court when the defendant's mental illness is in remission solely as
a result of medication or hospitalization or other mode of
treatment only if it can be determined by clear and convincing
evidence that with continued outpatient therapy or other mode of
outpatient treatment, the defendant's mental illness does not make
him or her a danger to self or others. When a defendant's mental
illness is in remission solely as a result of medication or
hospitalization or other mode of treatment, the court in its
discretion, may make the continuance of the medication or other
mode of treatment a condition of the defendant's release. Upon notice that a defendant who is released on the condition that he or
she continues medication or other mode of treatment does not
continue his medication or other mode of treatment, the prosecuting
attorney shall, by motion, cause the court to reconsider the
defendant's release. Upon a showing that defendant is in violation
of the conditions of his or her release, the court shall recommit
the defendant to the mental health facility.
(g) The prosecuting attorney shall, by motion, cause the
competency to stand trial of a defendant subject to the court's
jurisdiction pursuant to subsection (d) of this section or released
pursuant to subsection (f) of this section to be determined at
least every six months while the defendant remains under the
jurisdiction of the court. A defendant placed under the
jurisdiction of the court pursuant to the provisions of subsection
(d) or (e) of this section shall remain under the court's
jurisdiction until the expiration of the maximum possible sentence
the defendant could have received if convicted unless the defendant
regains competency and the criminal charges reach resolution or the
court, upon motion of the prosecuting attorney, dismisses the
indictment or charge.
§27-6A-4. Release from jurisdiction of the court; discharge.
(a) No later than thirty days prior to the release of a
defendant because of the expiration of the court's jurisdiction, if
the defendant's supervising physician or psychologist believes that the defendant's mental illness or mental retardation or addiction
causes the defendant to be dangerous to self or others, the
supervising physician or psychologist shall notify the prosecuting
attorney in the county of the court having jurisdiction of such
opinion and the basis therefor. Following this notification, the
prosecuting attorney shall file a civil commitment application
against the defendant, pursuant to article five of this chapter.
(b) Except as provided in subsection (g), section two of this
article, the court may discharge a mentally ill or addicted
defendant from the court's jurisdiction prior to the expiration of
the period specified in this section only when the court finds that
the person is no longer mentally ill or addicted and that the
person is no longer a danger to self or others: Provided, That a
defendant may not be released from the court's jurisdiction when
the defendant's mental illness is in remission solely as a result
of medication or hospitalization or other mode of treatment only if
it can be determined by clear and convincing evidence that with
continued outpatient therapy or other mode of outpatient treatment,
the defendant's mental illness does not make him or her a danger to
self or others. When a defendant's mental illness is in remission
solely as a result of medication or hospitalization or other mode
of treatment, the court in its discretion, may make the continuance
of the medication or other mode of treatment a condition of the
defendant's release. Upon notice that a defendant who is released on the condition that he or she continues medication or other mode
of treatment does not continue his medication or other mode of
treatment, the prosecuting attorney shall, by motion, cause the
court to reconsider the defendant's release. Upon a showing that
defendant is in violation of the conditions of his or her release,
the court shall reinstate its jurisdiction over the defendant. The
court may discharge a mentally retarded defendant from the court's
jurisdiction prior to the expiration of the period specified in
this section only when the court finds that the person is no longer
a danger to self or others.
(c) Those persons committed under the provisions of this
article may be released or discharged from the inpatient mental
health facility only upon entry of an order from the court of
record which committed the defendant, finding that the defendant
will not be a danger to self or others if so released, based upon
the evidence admitted at the hearing.
(d) The court shall promptly conduct a hearing after receipt
of the physician's or psychologist's notification referred to in
subsection (a) of this section. The clerk shall notify the
prosecuting attorney and the victim or next of kin of the victim of
the offense for which the defendant was committed of the hearing.
The burden shall be on the victim or next of kin of the victim to
keep the court apprised of the defendant's current mailing address.