                                 CODE OF VIRGINIA

DISPOSITION WHEN DEFENDANT FOUND INCOMPETENT (§ 19.2-169.2)

A. Upon finding pursuant to subsection E or F of &#xA7; 19.2-169.1 that the
defendant, including a juvenile transferred pursuant to &#xA7; 16.1-269.1, is
incompetent, the court shall order that the defendant receive treatment to
restore his competency on an outpatient basis or, if the court specifically
finds that the defendant requires inpatient hospital treatment, at a hospital
designated by the Commissioner of Behavioral Health and Developmental Services
as appropriate for treatment of persons under criminal charge. Outpatient
treatment may occur in a local correctional facility or at a location determined
by the appropriate community services board or behavioral health authority.
Notwithstanding the provisions of &#xA7; 19.2-178, if the court orders inpatient
hospital treatment, the defendant shall be transferred to and accepted by the
hospital designated by the Commissioner as soon as practicable, but no later
than 10 days, from the receipt of the court order requiring treatment to restore
the defendant&#8217;s competency. If the 10-day period expires on a Saturday,
Sunday, or other legal holiday, the 10 days shall be extended to the next day
that is not a Saturday, Sunday, or legal holiday. Any psychiatric records and
other information that have been deemed relevant and submitted by the attorney
for the defendant pursuant to subsection C of &#xA7; 19.2-169.1 and any reports
submitted pursuant to subsection D of &#xA7; 19.2-169.1 shall be made available
to the director of the community services board or behavioral health authority
or his designee or to the director of the treating inpatient facility or his
designee within 96 hours of the issuance of the court order requiring treatment
to restore the defendant&#8217;s competency. If the 96-hour period expires on a
Saturday, Sunday, or other legal holiday, the 96 hours shall be extended to the
next day that is not a Saturday, Sunday, or legal holiday.

B. If, at any time after the defendant is ordered to undergo treatment under
subsection A, the director of the community services board or behavioral health
authority or his designee or the director of the treating inpatient facility or
his designee believes the defendant&#8217;s competency is restored, the director
or his designee shall immediately send a report to the court as prescribed in
subsection D of &#xA7; 19.2-169.1. The court shall make a ruling on the
defendant&#8217;s competency according to the procedures specified in subsection
E of &#xA7; 19.2-169.1.

C. Notwithstanding the provisions of subsection A, in cases in which (i) the
defendant has been charged with a misdemeanor violation of Article 3 (&#xA7;
18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of &#xA7;
18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128; (ii) the defendant has been
found to be incompetent pursuant to subsection E or F of &#xA7; 19.2-169.1; and
(iii) the competency report described in subsection D of &#xA7; 19.2-169.1
recommends that the defendant be evaluated to determine whether he meets the
criteria for temporary detention pursuant to &#xA7; 37.2-809, the court may
order the community services board or behavioral health authority serving the
jurisdiction in which the defendant is located to (a) conduct an evaluation of
the defendant and (b) if the community services board or behavioral health
authority determines that the defendant meets the criteria for temporary
detention, file a petition for issuance of an order for temporary detention
pursuant to &#xA7; 37.2-809. The community services board or behavioral health
authority shall notify the court, in writing, within 72 hours of the completion
of the evaluation and, if appropriate, file a petition for issuance of an order
for temporary detention. Upon receipt of such notice, the court may dismiss the
charges without prejudice against the defendant. However, the court shall not
enter an order or dismiss charges against a defendant pursuant to this
subsection if the attorney for the Commonwealth is involved in the prosecution
of the case and the attorney for the Commonwealth does not concur in the motion.

D. If a defendant for whom an evaluation has been ordered pursuant to subsection
C fails or refuses to appear for the evaluation, the community services board or
behavioral health authority shall notify the court and the court shall issue a
mandatory examination order and capias directing the primary law-enforcement
agency for the jurisdiction in which the defendant resides to transport the
defendant to the location designated by the community services board or
behavioral health authority for examination.

E. The clerk of the court shall certify and forward forthwith to the Central
Criminal Records Exchange, on a form provided by the Exchange, a copy of an
order for treatment issued pursuant to subsection A.

HISTORY: 1982, c. 653; 2003, c. 735; 2007, c. 781; 2008, cc. 751, 788; 2009, cc.
813, 840; 2014, cc. 373, 408; 2017, c. 461; 2020, c. 937; 2022, c. 508; 2023,
cc. 229, 230.