W719 11:2
COW AUbWNHR
2019 SESSION
INTRODUCED
19103597D
SENATE BILL NO. 1231
Offered January 9, 2019
Prefiled January 4, 2019
A BILL to amend and reenact § 19.2-169.3 of the Code of Virginia, relating to disposition of
unrestorably incompetent defendants; capital murder.
Be it enacted by the General Assembly of Virginia:
1, That § 19.2-169.3 of the Code of Virginia is amended and reenacted as follows:
§ 19.2-169.3. Disposition of the unrestorably incompetent defendant; capital murder charge;
sexually violent offense charge.
A. If, at any time after the defendant is ordered to undergo treatment pursuant to subsection A of
§ 19.2-169.2, the director of the community services board oF behavioral health authority or his designee
or the director of the treating inpatient facility or his designee concludes that the defendant is likely to
remain incompetent for the foreseeable future, he shall send a report to the court so stating. The report
shall also indicate whether, in the board, authority, or inpatient facility director's or his designee's
opinion, the defendant should be released, committed pursuant to Article 5 (§ 37.2-814 et seq.) of
Chapter 8 of Title 37.2, committed pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, or certified
pursuant to § 37.2-806 in the event he is found to be unrestorably incompetent. Upon receipt of the
report, the court shall make a competency determination according to the procedures specified in
subsection E of § 19.2-169.1. If the court finds that the defendant is incompetent and is likely to remain
so for the foreseeable future, it shall order that he be (i) released, (ii) committed pursuant to Article 5
(§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, or (iii) certified pursuant to § 37.2-806. However, if the
court finds that the defendant is incompetent and is likely to remain so for the foreseeable future and the
defendant has been charged with a sexually violent offense, as defined in § 37.2-900, he shall be
screened pursuant to the procedures set forth in §§ 37.2-903 and 37.2-904. If the court finds the
defendant incompetent but restorable to competency in the foreseeable future, it may order treatment
continued until six months have elapsed from the date of the defendant's initial admission under
subsection A of § 19.2-169.2.
B. At the end of six months from the date of the defendant's initial admission under subsection A of
§ 19.2-169.2 if the defendant remains incompetent in the opinion of the board, authority, or inpatient
facility director or his designee, the director or his designee shall so notify the court and make
recommendations conceming disposition of the defendant as described in subsection A. The court shall
hold a hearing according to the procedures specified in subsection E of § 19.2-169.1 and, if it finds the
defendant unrestorably incompetent, shall order one of the dispositions described in subsection A. If the
court finds the defendant incompetent but restorable to competency, it may order continued treatment
under subsection A of § 19.2-169.2 for additional six-month periods, provided a hearing pursuant to
subsection E of § 19.2-169.1 is held at the completion of each such period and the defendant continues
to be incompetent but restorable to competency in the foreseeable future.
C. If any defendant has been charged with a misdemeanor in violation of Article 3 (§ 18.2-95 et
seq.) of Chapter 5 of Title 18.2 or Article 5 (§ 18.2-119 et seq.) of Chapter 5 of Title 18.2, other than a
misdemeanor charge pursuant to § 18.2-130 or Article 2 (§ 18.2-415 et seq.) of Chapter 9 of Title 18.2,
and is being treated pursuant to subsection A of § 19.2-169.2, and after 45 days has not been restored
to competency, the director of the community service board, behavioral health authority, or the director
of the treating inpatient facility, or any of their designees, shall send a report indicating the defendant's
status to the court. The report shall also indicate whether the defendant should be released or committed
pursuant to § 37.2-817 or certified pursuant to § 37.2-806. Upon receipt of the report, if the court
determines that the defendant is still incompetent, the court shall order that the defendant be released,
committed, or certified, and may dismiss the charges against the defendant.
D. Unless an incompetent defendant is charged with capital murder or the charges against an
incompetent criminal defendant have been previously dismissed, charges against an unrestorably
incompetent defendant shall be dismissed on the date upon which his sentence would have expired had
he been convicted and received the maximum sentence for the crime charged, or on the date five years
from the date of his arrest for such charges, whichever is sooner.
E. If the court orders an unrestorably incompetent defendant to be screened pursuant to the
procedures set forth in §§ 37.2-903 and 37.2-904, it shall order the attomey for the Commonwealth in
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SB1231 2 of 2
the jurisdiction wherein the defendant was charged and the Commissioner of Behavioral Health and
Developmental Services to provide the Director of the Department of Corrections with any information
relevant to the review, including, but not limited to: (i) a copy of the warrant or indictment, (ii) a copy
of the defendant's criminal record, (iii) information about the alleged crime, (iv) a copy of the
competency report completed pursuant to § 19.2-169.1, and (v) a c of the report prepared by the
director of the defendant's community services board, behavioral health authority, or treating inpatient
facility or his designee pursuant to this section. The court shall further order that the defendant be held
in the custody of the Department of Behavioral Health and Developmental Services for secure
confinement and treatment until the Commitment Review Committee's and Attorney General's review
and any subsequent hearing or trial are completed. If the court receives notice that the Attomey General
has declined to file a petition for the commitment of an unrestorably incompetent defendant as a
sexually violent predator after conducting a review pursuant to § 37.2-905, the court shall order that the
defendant be released, committed pursuant to view pt 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2,
or certified pursuant to § 37.2-806.
F. In any case when an incompetent defendant is charged with capital murder and has been
determined to be unrestorably incompetent, notwithstanding any other provision of this section, the
charge shall not be dismissed, and the court having jurisdiction over the capital murder case may order
that the defendant receive continued medically appropriate treatment under A of § 192-1692
for additional six-month periods without in a secure facility determined by the Commissioner
ce the Department of Behavioral Health and Developmental Services where the defendant shall remain
until further order of the court, Pasion that (i) a hearing say E of §419.2-1604 is
held at the completion of each such jon request of the defendant or defendant's counsel at no
more than yearly intervals for five years oe ant at no more than biennial intervals thereafter, or at any
time that the director of the treating facility or his designee submits a competency report to the court in
accordance with subsection D of § 19.2-169.1 that the defendant's competency has been restored, (ii)
the defendant remains incompetent, (ii) the court finds continued treatment to be medically appropriate,
and iy) (iii) the defendant presents a danger to himself or others. No unrestorably incompetent
defendant charged with capital murder shall be released except pursuant to a court order.
G. The attomey for the Commonwealth may bring charges that have been dismissed against the
defendant when he is restored to competency.
