As used in this article 8.5, unless the context otherwise requires:
"Collateral materials" means the relevant police incident reports and the chargingdocuments, either the criminal information or indictment.
"Competency evaluation" includes both court-ordered competency evaluations andsecond evaluations.
"Competency evaluator" means a licensed physician who is a psychiatrist or a licensed psychologist, each of whom is trained in forensic competency assessments, or a psychiatrist who is in forensic training and practicing under the supervision of a psychiatrist with expertise in forensic psychiatry, or a psychologist who is in forensic training and is practicing under the supervision of a licensed psychologist with expertise in forensic psychology.
"Competency hearing" means a hearing to determine whether a defendant is competent to proceed.
"Competent to proceed" means that the defendant does not have a mental disabilityor developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents the defendant from having a rational and factual understanding of the criminal proceedings.
"Court-ordered competency evaluation" means a court-ordered examination of a defendant either before, during, or after trial, directed to developing information relevant to a determination of the defendant's competency to proceed at a particular stage of the criminal proceeding, that is performed by a competency evaluator and includes evaluations concerning restoration to competency.
"Court-ordered report" means a report of an evaluation, conducted by or under thedirection of the department, that is the statutory obligation of the department to prepare when requested to do so by the court.
"Criminal proceedings" means trial, sentencing, satisfaction of the sentence, execution, and any pretrial matter that is not susceptible of fair determination without the personal participation of the defendant.
"Department" means the department of human services.
"Developmental disability" means a disability that has manifested before the personreaches twenty-two years of age, constitutes a substantial disability to the affected individual, and is attributable to an intellectual disability or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with an intellectual disability. Unless otherwise specifically stated, the federal definition of "developmental disability", 42 U.S.C. sec. 15002 (8), shall not apply.
"Executive director" means the executive director of the department of human services.
"Incompetent to proceed" means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.
"In-custody" means in prison, in a jail, or in any other locked detention facility thatdoes not meet the definition of inpatient.
"Inpatient" means in the custody of the department, either in a hospital or in a fulltime, jail-based restoration program developed by the department.
"Mental disability" means a substantial disorder of thought, mood, perception, orcognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. "Mental disability" does not include acute intoxication from alcohol or other substances, or any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability.
"Outpatient" means a location outside of the custody of the department. "Outpatient" does not include a jail, prison, or other detention facility where the defendant is incustody.
"Restoration hearing" means a hearing to determine whether a defendant who haspreviously been determined to be incompetent to proceed has become competent to proceed.
"Second evaluation" means an evaluation requested by the court, the district attorney, or the defendant that is performed by a competency evaluator and that is not performed by or under the direction of, or paid for by, the department.
"Tier 1" means a defendant:
Who has been ordered to receive inpatient restorative treatment;
For whom a competency evaluator has determined either that the defendant:
Appears to have a mental health disorder and, as a result of the mental health disorder, appears to be a danger to others or to himself or herself or appears to be gravely disabled; or
Has a mental health disorder; and
(c) For whom, as a result of the determination made pursuant to subsection (19)(b) of this section, delaying inpatient hospitalization beyond seven days would cause harm to the defendant or others.
(20) "Tier 2" means a defendant who has been ordered to receive inpatient restorative treatment and who does not meet the criteria to be a tier 1 defendant.
Source: L. 2008: Entire article added, p. 1838, § 2, effective July 1. L. 2018: IP and (7) amended, (HB 18-1109), ch. 139, p. 914, § 3, effective April 23. L. 2019: Entire section amended, (SB 19-223), ch. 227, p. 2273, § 1, effective July 1; (9) amended, (SB 19-241), ch. 390, p. 3465, § 11, effective August 2. L. 2020: (19)(c) amended, (HB 20-1402), ch. 216, p. 1046, § 25, effective June 30.
Editor's note: Amendments to this section by SB 19-223 and SB 19-241 were harmonized.