{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/19.2-169.1.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/19.2-169.1.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/19.2-169.1.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/19.2-169.1.html"}],"law_id":85695,"edition_id":1,"section_id":85695,"structure_id":13151,"section_number":"19.2-169.1","catch_line":"Raising question of competency to stand trial or plead; evaluation and determination of competency","history":"1982, c. 653; 1983, c. 373; 1985, c. 307; 2003, c. 735; 2007, c. 781; 2009, cc. 813, 840; 2014, cc. 329, 739; 2016, c. 445; 2018, c. 367; 2020, cc. 299, 937, 1121; 2021, Sp. Sess. I, c. 316; 2022, c. 508; 2023, cc. 229, 230.","full_text":"A\n\nRaising competency issue; appointment of evaluators. — If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner.B\n\nLocation of evaluation. — The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion or unless the defendant is in the custody of the Commissioner of Behavioral Health and Developmental Services pursuant to § 19.2-169.2, 19.2-169.6, 19.2-182.2, 19.2-182.3, 19.2-182.8, 19.2-182.9, or Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2.C\n\nProvision of information to evaluators. — The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation; (iii) information about the alleged crime; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant to provide any available psychiatric records and other information that is deemed relevant. The court shall require that information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to this section.D\n\nThe competency report. — Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant’s capacity to understand the proceedings against him; (ii) the defendant’s ability to assist his attorney; (iii) the defendant’s need for treatment in the event he is found incompetent but restorable or incompetent for the foreseeable future; and (iv) if the defendant has been charged with a misdemeanor violation of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128, whether the defendant should be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809 in the event he is found incompetent but restorable or incompetent for the foreseeable future.\n\t\t\tIf a need for restoration treatment is identified pursuant to clause (iii), the report shall state whether inpatient or outpatient treatment (community-based or jail-based) is recommended. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority. In cases where a defendant is likely to remain incompetent for the foreseeable future due to an ongoing and irreversible medical condition, and where prior medical or educational records are available to support the diagnosis, or if the defendant was previously determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant unrestorably incompetent to stand trial and the court may proceed with the disposition of the case in accordance with § 19.2-169.3. No statements of the defendant relating to the time period of the alleged offense shall be included in the report. The evaluator shall also send a redacted copy of the report removing references to the defendant’s name, date of birth, case number, and court of jurisdiction to the Commissioner of Behavioral Health and Developmental Services for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A.E\n\nThe competency determination. — After receiving the report described in subsection D, the court shall promptly determine whether the defendant is competent to stand trial. A hearing on the defendant’s competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the defendant, or unless the court has reasonable cause to believe the defendant will be hospitalized under § 19.2-169.2. If a hearing is held, the party alleging that the defendant is incompetent shall bear the burden of proving by a preponderance of the evidence the defendant’s incompetency. The defendant shall have the right to notice of the hearing, the right to counsel at the hearing and the right to personally participate in and introduce evidence at the hearing.\n\t\t\tThe fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of competency if the defendant otherwise understands the charges against him and can assist in his defense. Nor shall the fact that the defendant is under the influence of medication bar a finding of competency if the defendant is able to understand the charges against him and assist in his defense while medicated.F\n\nFinding. — If the court finds the defendant competent to stand trial, the case shall be set for trial or a preliminary hearing. If the court finds the defendant either incompetent but restorable or incompetent for the foreseeable future, the court shall proceed pursuant to § 19.2-169.2.","order_by":null,"text":{"0":{"id":306950,"text":"Raising competency issue; appointment of evaluators. — If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":306951,"text":"Location of evaluation. — The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion or unless the defendant is in the custody of the Commissioner of Behavioral Health and Developmental Services pursuant to § 19.2-169.2, 19.2-169.6, 19.2-182.2, 19.2-182.3, 19.2-182.8, 19.2-182.9, or Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"C"},"2":{"id":306952,"text":"Provision of information to evaluators. — The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant, and the judge ordering the evaluation; (iii) information about the alleged crime; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant to provide any available psychiatric records and other information that is deemed relevant. The court shall require that information be provided to the evaluator within 96 hours of the issuance of the court order pursuant to this section.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B","next_prefix":"D"},"3":{"id":306953,"text":"The competency report. — Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant’s capacity to understand the proceedings against him; (ii) the defendant’s ability to assist his attorney; (iii) the defendant’s need for treatment in the event he is found incompetent but restorable or incompetent for the foreseeable future; and (iv) if the defendant has been charged with a misdemeanor violation of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128, whether the defendant should be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809 in the event he is found incompetent but restorable or incompetent for the foreseeable future.\n\t\t\tIf a need for restoration treatment is identified pursuant to clause (iii), the report shall state whether inpatient or outpatient treatment (community-based or jail-based) is recommended. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority. In cases where a defendant is likely to remain incompetent for the foreseeable future due to an ongoing and irreversible medical condition, and where prior medical or educational records are available to support the diagnosis, or if the defendant was previously determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant unrestorably incompetent to stand trial and the court may proceed with the disposition of the case in accordance with § 19.2-169.3. No statements of the defendant relating to the time period of the alleged offense shall be included in the report. The evaluator shall also send a redacted copy of the report removing references to the defendant’s name, date of birth, case number, and court of jurisdiction to the Commissioner of Behavioral Health and Developmental Services for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C","next_prefix":"E"},"4":{"id":306954,"text":"The competency determination. — After receiving the report described in subsection D, the court shall promptly determine whether the defendant is competent to stand trial. A hearing on the defendant’s competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the defendant, or unless the court has reasonable cause to believe the defendant will be hospitalized under § 19.2-169.2. If a hearing is held, the party alleging that the defendant is incompetent shall bear the burden of proving by a preponderance of the evidence the defendant’s incompetency. The defendant shall have the right to notice of the hearing, the right to counsel at the hearing and the right to personally participate in and introduce evidence at the hearing.\n\t\t\tThe fact that the defendant claims to be unable to remember the time period surrounding the alleged offense shall not, by itself, bar a finding of competency if the defendant otherwise understands the charges against him and can assist in his defense. Nor shall the fact that the defendant is under the influence of medication bar a finding of competency if the defendant is able to understand the charges against him and assist in his defense while medicated.","type":"section","prefixes":["E"],"prefix":"E","entire_prefix":"E","prefix_anchor":"E","level":1,"prior_prefix":"D","next_prefix":"F"},"5":{"id":306955,"text":"Finding. — If the court finds the defendant competent to stand trial, the case shall be set for trial or a preliminary hearing. If the court finds the defendant either incompetent but restorable or incompetent for the foreseeable future, the court shall proceed pursuant to § 19.2-169.2.","type":"section","prefixes":["F"],"prefix":"F","entire_prefix":"F","prefix_anchor":"F","level":1,"prior_prefix":"E"}},"ancestry":[{"id":13151,"edition_id":1,"name":"Proceedings on Question of Insanity","identifier":"11","label":"chapter","depth":2,"order_by":1,"parent_id":12801,"metadata":{},"date_created":"2026-06-26 03:44:21","date_modified":"2026-06-26 03:44:21","permalink":{"id":168457,"object_type":"structure","relational_id":13151,"identifier":"11","token":"19.2\/11","url":"\/19.2\/11\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12801,"edition_id":1,"name":"Criminal Procedure","identifier":"19.2","label":"title","depth":1,"order_by":1,"parent_id":null,"metadata":{},"date_created":"2026-06-26 03:43:53","date_modified":"2026-06-26 03:43:53","permalink":{"id":168169,"object_type":"structure","relational_id":12801,"identifier":"19.2","token":"19.2","url":"\/19.2\/","edition_id":1,"permalink":0,"preferred":1}}],"structure_contents":[{"id":63190,"structure_id":13151,"section_number":"19.2-167","catch_line":"Accused not to be tried while insane or feebleminded","url":"\/19.2-167\/","token":"19.2\/11\/19.2-167","metadata":false},{"id":75846,"structure_id":13151,"section_number":"19.2-168","catch_line":"Notice to Commonwealth of intention to present evidence of insanity; continuance if notice not given","url":"\/19.2-168\/","token":"19.2\/11\/19.2-168","metadata":false},{"id":72794,"structure_id":13151,"section_number":"19.2-168.1","catch_line":"Evaluation on motion of the Commonwealth after notice","url":"\/19.2-168.1\/","token":"19.2\/11\/19.2-168.1","metadata":false},{"id":79422,"structure_id":13151,"section_number":"19.2-169","catch_line":"Repealed","url":"\/19.2-169\/","token":"19.2\/11\/19.2-169","metadata":false},{"id":85695,"structure_id":13151,"section_number":"19.2-169.1","catch_line":"Raising question of competency to stand trial or plead; evaluation and determination of competency","url":"\/19.2-169.1\/","token":"19.2\/11\/19.2-169.1","metadata":false},{"id":66444,"structure_id":13151,"section_number":"19.2-169.2","catch_line":"Disposition when defendant found incompetent","url":"\/19.2-169.2\/","token":"19.2\/11\/19.2-169.2","metadata":false},{"id":80703,"structure_id":13151,"section_number":"19.2-169.3","catch_line":"Disposition of the unrestorably incompetent defendant; aggravated murder charge; sexually violent offense charge","url":"\/19.2-169.3\/","token":"19.2\/11\/19.2-169.3","metadata":false},{"id":65242,"structure_id":13151,"section_number":"19.2-169.3:1","catch_line":"Disposition of the unrestorably incompetent defendant; capital murder charge; inpatient custody of the Commissioner","url":"\/19.2-169.3_1\/","token":"19.2\/11\/19.2-169.3_1","metadata":false},{"id":84474,"structure_id":13151,"section_number":"19.2-169.4","catch_line":"Litigating certain issues when the defendant is incompetent","url":"\/19.2-169.4\/","token":"19.2\/11\/19.2-169.4","metadata":false},{"id":60376,"structure_id":13151,"section_number":"19.2-169.5","catch_line":"Evaluation of sanity at the time of the offense; disclosure of evaluation results","url":"\/19.2-169.5\/","token":"19.2\/11\/19.2-169.5","metadata":false},{"id":74002,"structure_id":13151,"section_number":"19.2-169.6","catch_line":"Inpatient psychiatric hospital admission from local correctional facility","url":"\/19.2-169.6\/","token":"19.2\/11\/19.2-169.6","metadata":false},{"id":64791,"structure_id":13151,"section_number":"19.2-169.7","catch_line":"Disclosure by defendant during evaluation or treatment; use at guilt phase of trial","url":"\/19.2-169.7\/","token":"19.2\/11\/19.2-169.7","metadata":false},{"id":60590,"structure_id":13151,"section_number":"19.2-169.8","catch_line":"Orders for evaluation or treatment; duties of clerk; copies","url":"\/19.2-169.8\/","token":"19.2\/11\/19.2-169.8","metadata":false},{"id":73663,"structure_id":13151,"section_number":"19.2-170","catch_line":"Repealed","url":"\/19.2-170\/","token":"19.2\/11\/19.2-170","metadata":false},{"id":60224,"structure_id":13151,"section_number":"19.2-174.1","catch_line":"Information required prior to admission to a mental health facility","url":"\/19.2-174.1\/","token":"19.2\/11\/19.2-174.1","metadata":false},{"id":59943,"structure_id":13151,"section_number":"19.2-175","catch_line":"Compensation of experts","url":"\/19.2-175\/","token":"19.2\/11\/19.2-175","metadata":false},{"id":78967,"structure_id":13151,"section_number":"19.2-176","catch_line":"Repealed","url":"\/19.2-176\/","token":"19.2\/11\/19.2-176","metadata":false},{"id":73536,"structure_id":13151,"section_number":"19.2-177","catch_line":"Repealed","url":"\/19.2-177\/","token":"19.2\/11\/19.2-177","metadata":false},{"id":59883,"structure_id":13151,"section_number":"19.2-177.1","catch_line":"Repealed","url":"\/19.2-177.1\/","token":"19.2\/11\/19.2-177.1","metadata":false},{"id":86647,"structure_id":13151,"section_number":"19.2-178","catch_line":"Where prisoner kept when no vacancy in facility or hospital","url":"\/19.2-178\/","token":"19.2\/11\/19.2-178","metadata":false},{"id":65369,"structure_id":13151,"section_number":"19.2-179","catch_line":"Repealed","url":"\/19.2-179\/","token":"19.2\/11\/19.2-179","metadata":false},{"id":78799,"structure_id":13151,"section_number":"19.2-180","catch_line":"Sentence or trial of prisoner when restored to sanity","url":"\/19.2-180\/","token":"19.2\/11\/19.2-180","metadata":false},{"id":54174,"structure_id":13151,"section_number":"19.2-181","catch_line":"Repealed","url":"\/19.2-181\/","token":"19.2\/11\/19.2-181","metadata":false},{"id":78634,"structure_id":13151,"section_number":"19.2-182","catch_line":"Representation by counsel in proceeding for commitment","url":"\/19.2-182\/","token":"19.2\/11\/19.2-182","metadata":false},{"id":87165,"structure_id":13151,"section_number":"19.2-182.1","catch_line":"Repealed","url":"\/19.2-182.1\/","token":"19.2\/11\/19.2-182.1","metadata":false}],"previous_section":{"id":79422,"structure_id":13151,"section_number":"19.2-169","catch_line":"Repealed","url":"\/19.2-169\/","token":"19.2\/11\/19.2-169","metadata":false},"next_section":{"id":66444,"structure_id":13151,"section_number":"19.2-169.2","catch_line":"Disposition when defendant found incompetent","url":"\/19.2-169.2\/","token":"19.2\/11\/19.2-169.2","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/19.2-169.1\/","history_text":"

This law was first created in 1982. The record of its establishment is cataloged in chapter 653 of that year\u2019s edition of \u201cActs of Assembly,\u201d the annual state publication listing all changes made to the Code of Virginia in that year. Unfortunately, the 1982 \u201cActs\u201d aren\u2019t available online. It has been modified 11 times. Those modifications are cataloged by \u201cThe Acts of Assembly,\u201d a state publication, by year and chapter. Those modifications that can be read on the General Assembly\u2019s website will be linked accordingly. Those modifications are as follows: in 1983, chapter 373; in 1985, chapter 307; in 2003, chapter 735<\/a>; in 2007, chapter 781<\/a>; in 2009, chapters 813<\/a> and 840<\/a>; in 2014, chapters 329<\/a> and 739<\/a>; in 2016, chapter 445<\/a>; in 2018, chapter 367<\/a>; in 2020, chapters 299<\/a>, 937<\/a>, and 1121<\/a>; in 2022, chapter 508<\/a>; in 2023, chapters 229<\/a> and 230<\/a>.<\/p>","references":[{"id":66444,"section_number":"19.2-169.2","catch_line":"Disposition when defendant found incompetent","order_by":null,"url":"\/19.2-169.2\/"},{"id":80703,"section_number":"19.2-169.3","catch_line":"Disposition of the unrestorably incompetent defendant; aggravated murder charge; sexually violent offense charge","order_by":null,"url":"\/19.2-169.3\/"},{"id":74002,"section_number":"19.2-169.6","catch_line":"Inpatient psychiatric hospital admission from local correctional facility","order_by":null,"url":"\/19.2-169.6\/"},{"id":64791,"section_number":"19.2-169.7","catch_line":"Disclosure by defendant during evaluation or treatment; use at guilt phase of trial","order_by":null,"url":"\/19.2-169.7\/"},{"id":60590,"section_number":"19.2-169.8","catch_line":"Orders for evaluation or treatment; duties of clerk; copies","order_by":null,"url":"\/19.2-169.8\/"},{"id":59943,"section_number":"19.2-175","catch_line":"Compensation of experts","order_by":null,"url":"\/19.2-175\/"},{"id":86647,"section_number":"19.2-178","catch_line":"Where prisoner kept when no vacancy in facility or hospital","order_by":null,"url":"\/19.2-178\/"},{"id":70632,"section_number":"19.2-242","catch_line":"Accused discharged from jail if not indicted in time","order_by":null,"url":"\/19.2-242\/"},{"id":81089,"section_number":"19.2-389","catch_line":"(Effective July 1, 2026) Dissemination of criminal history record information","order_by":null,"url":"\/19.2-389\/"},{"id":61292,"section_number":"37.2-817","catch_line":"(Effective July 1, 2026) Involuntary admission","order_by":null,"url":"\/37.2-817\/"}],"refers_to":[{"id":66829,"section_number":"16.1-269.1","catch_line":"Trial in circuit court; 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A.<\/span> Raising competency issue<\/span>; appointment of evaluators. — If, at any time after the attorney for the defendant<\/span> has been retained or appointed and before the end of trial<\/span>, the court<\/span> finds, upon hearing<\/span> evidence<\/span> or representations of counsel<\/span> for the defendant<\/span> or the attorney for the Commonwealth, that there is probable cause<\/span> to believe that the defendant<\/span>, whether a juvenile transferred pursuant to § 16.1-269.1<\/a> or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court<\/span> shall order<\/span> that a competency evaluation be performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> Location of evaluation. — The evaluation shall be performed on an outpatient basis at a mental health facility or in jail unless an outpatient evaluation has been conducted and the outpatient evaluator opines that a hospital-based evaluation is needed to reliably reach an opinion<\/span> or unless the defendant<\/span> is in the custody<\/span> of the Commissioner of Behavioral Health and Developmental Services pursuant to § 19.2-169.2<\/a>, 19.2-169.6<\/a>, 19.2-182.2<\/a>, 19.2-182.3<\/a>, 19.2-182.8<\/a>, 19.2-182.9<\/a>, or Article 5 (§ 37.2-814<\/a> et seq.) of Chapter 8 of Title 37.2. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> Provision of information to evaluators. — The court shall require the attorney for the Commonwealth to provide to the evaluators appointed under subsection A any information relevant to the evaluation, including, but not limited to (i) a copy of the warrant or indictment<\/span>; (ii) the names and addresses of the attorney for the Commonwealth, the attorney for the defendant<\/span>, and the judge<\/span> ordering the evaluation; (iii) information about the alleged crime<\/span>; and (iv) a summary of the reasons for the evaluation request. The court shall require the attorney for the defendant<\/span> to provide any available psychiatric records and other information that is deemed relevant. The court shall require that information be provided to the evaluator within 96 hours of the issuance of the court order<\/span> pursuant to this section. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> The competency report. — Upon completion of the evaluation, the evaluators shall promptly submit a report in writing to the court and the attorneys of record concerning (i) the defendant<\/span>’s capacity to understand the proceedings against him; (ii) the defendant<\/span>’s ability to assist his attorney; (iii) the defendant<\/span>’s need for treatment in the event he is found incompetent but restorable or incompetent for the foreseeable future; and (iv) if the defendant<\/span> has been charged with a misdemeanor<\/span> violation of Article 3 (§ 18.2-95<\/a> et seq.) of Chapter 5 of Title 18.2 or a misdemeanor<\/span> violation of § 18.2-119<\/a>, 18.2-137<\/a>, 18.2-388<\/a>, 18.2-415<\/a>, or 19.2-128<\/a>, whether the defendant<\/span> should be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809<\/a> in the event he is found incompetent but restorable or incompetent for the foreseeable future.\n\t\t\tIf a need for restoration treatment is identified pursuant to clause (iii), the report shall state whether inpatient or outpatient treatment (community-based or jail-based) is recommended. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services<\/span> board or behavioral health authority. In cases where a defendant<\/span> is likely to remain incompetent for the foreseeable future due to an ongoing and irreversible medical condition, and where prior medical or educational records are available to support the diagnosis, or if the defendant<\/span> was previously determined to be unrestorably incompetent in the past two years, the report may recommend that the court find the defendant<\/span> unrestorably incompetent to stand trial<\/span> and the court may proceed with the disposition<\/span> of the case in accordance with § 19.2-169.3<\/a>. No statements of the defendant<\/span> relating to the time period of the alleged offense<\/span> shall be included in the report. The evaluator shall also send a redacted copy of the report removing references to the defendant<\/span>’s name, date of birth, case number, and court of jurisdiction<\/span> to the Commissioner of Behavioral Health and Developmental Services for the purpose of peer review to establish and maintain the list of approved evaluators described in subsection A. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

E.<\/span> The competency determination. — After receiving the report described in subsection D, the court shall promptly determine whether the defendant<\/span> is competent to stand trial<\/span>. A hearing<\/span> on the defendant<\/span>’s competency is not required unless one is requested by the attorney for the Commonwealth or the attorney for the defendant<\/span>, or unless the court has reasonable cause to believe the defendant<\/span> will be hospitalized under § 19.2-169.2<\/a>. If a hearing<\/span> is held, the party<\/span> alleging that the defendant<\/span> is incompetent shall bear the burden of proving by a preponderance of the evidence<\/span> the defendant<\/span>’s incompetency. The defendant<\/span> shall have the right to notice of the hearing<\/span>, the right to counsel<\/span> at the hearing<\/span> and the right to personally participate in and introduce evidence at the hearing<\/span>.\n\t\t\tThe fact<\/span> that the defendant<\/span> claims to be unable to remember the time period surrounding the alleged offense<\/span> shall not, by itself, bar a finding<\/span> of competency if the defendant<\/span> otherwise understands the charges against him and can assist in his defense. Nor shall the fact<\/span> that the defendant<\/span> is under the influence of medication bar a finding<\/span> of competency if the defendant<\/span> is able to understand the charges against him and assist in his defense while medicated. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

F.<\/span> Finding<\/span>. — If the court finds the defendant<\/span> competent to stand trial<\/span>, the case shall be set for trial<\/span> or a preliminary hearing<\/span>. If the court finds the defendant<\/span> either incompetent but restorable or incompetent for the foreseeable future, the court shall proceed pursuant to § 19.2-169.2<\/a>. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nRAISING QUESTION OF COMPETENCY TO STAND TRIAL OR PLEAD; EVALUATION AND\nDETERMINATION OF COMPETENCY (\u00a7 19.2-169.1)\n\nA. Raising competency issue; appointment of evaluators. — If, at any time\nafter the attorney for the defendant has been retained or appointed and before\nthe end of trial, the court finds, upon hearing evidence or representations of\ncounsel for the defendant or the attorney for the Commonwealth, that there is\nprobable cause to believe that the defendant, whether a juvenile transferred\npursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand\nthe proceedings against him or to assist his attorney in his own defense, the\ncourt shall order that a competency evaluation be performed by at least one\npsychiatrist or clinical psychologist who (i) has performed forensic\nevaluations; (ii) has successfully completed forensic evaluation training\nrecognized by the Commissioner of Behavioral Health and Developmental Services;\n(iii) has demonstrated to the Commissioner competence to perform forensic\nevaluations; and (iv) is included on a list of approved evaluators maintained by\nthe Commissioner.\n\nB. Location of evaluation. — The evaluation shall be performed on an\noutpatient basis at a mental health facility or in jail unless an outpatient\nevaluation has been conducted and the outpatient evaluator opines that a\nhospital-based evaluation is needed to reliably reach an opinion or unless the\ndefendant is in the custody of the Commissioner of Behavioral Health and\nDevelopmental Services pursuant to § 19.2-169.2, 19.2-169.6, 19.2-182.2,\n19.2-182.3, 19.2-182.8, 19.2-182.9, or Article 5 (§ 37.2-814 et seq.) of\nChapter 8 of Title 37.2.\n\nC. Provision of information to evaluators. — The court shall require the\nattorney for the Commonwealth to provide to the evaluators appointed under\nsubsection A any information relevant to the evaluation, including, but not\nlimited to (i) a copy of the warrant or indictment; (ii) the names and addresses\nof the attorney for the Commonwealth, the attorney for the defendant, and the\njudge ordering the evaluation; (iii) information about the alleged crime; and\n(iv) a summary of the reasons for the evaluation request. The court shall\nrequire the attorney for the defendant to provide any available psychiatric\nrecords and other information that is deemed relevant. The court shall require\nthat information be provided to the evaluator within 96 hours of the issuance of\nthe court order pursuant to this section.\n\nD. The competency report. — Upon completion of the evaluation, the\nevaluators shall promptly submit a report in writing to the court and the\nattorneys of record concerning (i) the defendant’s capacity to understand\nthe proceedings against him; (ii) the defendant’s ability to assist his\nattorney; (iii) the defendant’s need for treatment in the event he is\nfound incompetent but restorable or incompetent for the foreseeable future; and\n(iv) if the defendant has been charged with a misdemeanor violation of Article 3\n(§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation\nof § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128, whether the\ndefendant should be evaluated to determine whether he meets the criteria for\ntemporary detention pursuant to § 37.2-809 in the event he is found\nincompetent but restorable or incompetent for the foreseeable future.\n\t\t\tIf a need for restoration treatment is identified pursuant to clause (iii),\nthe report shall state whether inpatient or outpatient treatment\n(community-based or jail-based) is recommended. Outpatient treatment may occur\nin a local correctional facility or at a location determined by the appropriate\ncommunity services board or behavioral health authority. In cases where a\ndefendant is likely to remain incompetent for the foreseeable future due to an\nongoing and irreversible medical condition, and where prior medical or\neducational records are available to support the diagnosis, or if the defendant\nwas previously determined to be unrestorably incompetent in the past two years,\nthe report may recommend that the court find the defendant unrestorably\nincompetent to stand trial and the court may proceed with the disposition of the\ncase in accordance with § 19.2-169.3. No statements of the defendant\nrelating to the time period of the alleged offense shall be included in the\nreport. The evaluator shall also send a redacted copy of the report removing\nreferences to the defendant’s name, date of birth, case number, and court\nof jurisdiction to the Commissioner of Behavioral Health and Developmental\nServices for the purpose of peer review to establish and maintain the list of\napproved evaluators described in subsection A.\n\nE. The competency determination. — After receiving the report described\nin subsection D, the court shall promptly determine whether the defendant is\ncompetent to stand trial. A hearing on the defendant’s competency is not\nrequired unless one is requested by the attorney for the Commonwealth or the\nattorney for the defendant, or unless the court has reasonable cause to believe\nthe defendant will be hospitalized under § 19.2-169.2. If a hearing is\nheld, the party alleging that the defendant is incompetent shall bear the burden\nof proving by a preponderance of the evidence the defendant’s\nincompetency. The defendant shall have the right to notice of the hearing, the\nright to counsel at the hearing and the right to personally participate in and\nintroduce evidence at the hearing.\n\t\t\tThe fact that the defendant claims to be unable to remember the time period\nsurrounding the alleged offense shall not, by itself, bar a finding of\ncompetency if the defendant otherwise understands the charges against him and\ncan assist in his defense. Nor shall the fact that the defendant is under the\ninfluence of medication bar a finding of competency if the defendant is able to\nunderstand the charges against him and assist in his defense while medicated.\n\nF. Finding. — If the court finds the defendant competent to stand trial,\nthe case shall be set for trial or a preliminary hearing. If the court finds the\ndefendant either incompetent but restorable or incompetent for the foreseeable\nfuture, the court shall proceed pursuant to § 19.2-169.2.\n\nHISTORY: 1982, c. 653; 1983, c. 373; 1985, c. 307; 2003, c. 735; 2007, c. 781;\n2009, cc. 813, 840; 2014, cc. 329, 739; 2016, c. 445; 2018, c. 367; 2020, cc.\n299, 937, 1121; 2021, Sp. Sess. I, c. 316; 2022, c. 508; 2023, cc. 229, 230.","edition":{"id":1,"name":"2025","slug":"2025","date_created":"2026-06-21 22:39:22","date_modified":"2026-06-21 22:39:22","current":1,"order_by":1,"last_import":null}}