Rule 5-602.3. Incompetency due to developmental or intellectual disability.

A. Definitions. The following definitions shall apply for purposes of this rule. (1) Department. “Department” means the New Mexico Department of Health. (2) Developmental or intellectual disability. Developmental or intellectual disability means significant subaverage intellectual functioning existing concurrently with deficits in adaptive behavior. An intelligence quotient of seventy (70) or below on a reliably administered intelligence quotient test shall be presumptive evidence of developmental or intellectual disability. B. Hearing to determine developmental or intellectual disability. If a defendant is charged with a felony and found incompetent to stand trial, on motion of a party or the court, the court shall hold a hearing to determine if the defendant is not competent due to developmental or intellectual disability. The purpose of the hearing shall be to determine whether there is a preponderance of the evidence of the following: (1) the defendant is not competent to stand trial due to a developmental or intellectual disability; and (2) there is not a substantial probability that the defendant will be restored to competency within nine (9) months from the date the court determined the defendant is not competent to stand trial. C. Department evaluation; notice of Department’s findings. If the court makes the findings set forth in Paragraph B of this rule, the court shall order the Department to perform an evaluation within sixty (60) days of service of the order to determine whether the defendant presents a likelihood of serious harm to the defendant’s self or others. At the completion of the evaluation, the Department shall promptly notify the court and the parties of its findings. D. Proceedings under NMSA 1978, Chapter 43, Article 1. If the Department determines that the defendant presents a likelihood of serious harm to self or others, (1) the Department shall initiate involuntary commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code if the defendant is charged with one or more of the following offenses: (a) murder in the first or second degree, as provided in NMSA 1978, Section 30-2-1; (b) a felony involving infliction of great bodily harm, as defined in NMSA 1978, Section 30-1-12, on another person; (c) criminal sexual penetration, as provided in NMSA 1978, Section 30-9-11; (d) criminal sexual contact of a minor, as provided in NMSA 1978, Section 30- 9-13; (e) abuse of a child, as provided in NMSA 1978, Section 30-6-1(D); (f) a crime provided for in the Sexual Exploitation of Children Act; (g) human trafficking, as provided in NMSA 1978, Section 30-52-1; (h) aggravated arson, as provided in NMSA 1978, Section 30-17-6; or (i) any “serious violent offense” enumerated in NMSA 1978, Section 33-2- 34(L)(4)(a)-(n) with the use of a firearm; or (2) the Department may initiate involuntary commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code if the defendant has not been charged with an offense enumerated in Subparagraph (1) of this paragraph. E. Notice. (1) The Department shall notify the court if it initiates involuntary commitment proceedings in accordance with the Mental Health and Developmental Disabilities Code and Paragraph D of this rule. (2) The Department shall notify the court as soon as practicable if the Department does not intend to initiate proceedings under Paragraph (D)(2) of this rule. F. Disposition of criminal charges. Unless the court dismisses the charges at an earlier time, the criminal charges against the defendant shall be dismissed without prejudice on the first of the following to occur: (1) the involuntary commitment hearing; or (2) the expiration of fourteen (14) months from the court’s initial determination that the defendant is not competent to stand trial. G. Automatic sealing of court records. Any motion, response, assessment, treatment plan, report, or other paper filed under this rule shall be automatically sealed without motion or order of the court as provided in Rule 5-123(C)(2) NMRA. An order issued under this rule shall not be sealed except on motion and order under Rule 5-123.