Chapter 2.27
COMPETENCY
Sections:
2.27.020 Competency evaluation.
2.27.030 Competency restoration process.
2.27.040 Involuntary medication.
2.27.060 Timeliness – Dismissal disfavored.
2.27.010 Mental incapacity.
(1) A defendant is incompetent to stand trial if he or she lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.
(2) No incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues. [Res. 2023-513 § 2].
2.27.020 Competency evaluation.
(1) Whenever there is a doubt as to the competency of a criminal defendant, the Court on its own motion or on the motion of any party shall first review the allegations of incompetency. The Court shall make a determination of whether sufficient facts have been provided to form a genuine doubt as to competency based on information provided by counsel, judicial colloquy, or direct observation of the defendant. If a genuine doubt as to competency exists, the Court shall refer the defendant to a qualified expert or professional person designated by the State of Washington or the Tulalip Tribes to evaluate and report upon the mental condition of the defendant.
(2) The signed order of the Court shall serve as authority for the evaluator to be given access to all records held by any mental health, medical, long-term services or supports, educational, or correctional facility that relate to the present or past mental, emotional, or physical condition of the defendant.
(3) A defendant may refuse to answer any question if he or she believes his or her answers may incriminate him or her.
(4) For a competency evaluation of a defendant who is released from custody, if the evaluation cannot be completed within 21 days due to a lack of cooperation by the defendant, the evaluator shall notify the Court that he or she is unable to complete the evaluation because of such lack of cooperation.
(5) The expert conducting the evaluation shall provide his or her report and recommendation to the Court, prosecuting attorney, and defense attorney.
(6) If the evaluator concludes that the person should be evaluated by a designated crisis responder, the Court shall order such evaluation be conducted prior to release from confinement when the person is acquitted, or convicted and sentenced to confinement for 24 months or less, or when charges are dismissed pursuant to a finding of incompetent to stand trial. [Res. 2023-513 § 2].
2.27.030 Competency restoration process.
(1) The Court may order a defendant who has been charged with a felony or serious offense and found to be incompetent to undergo competency restoration treatment.
(2) An order for competency restoration treatment shall specify a reasonable competency restoration period. At the end of the competency restoration period or at any time a professional person determines competency has not been, or is unlikely to be, restored, the defendant shall be returned to court for a hearing, except that if the opinion of the professional person is that the defendant remains incompetent and the hearing is held before the expiration of the current competency restoration period, the parties may agree to waive the defendant’s presence, to remote participation by the defendant at a hearing, or to presentation of an agreed order in lieu of a hearing.
(3) The Court may order a further period of competency restoration treatment for a reasonable time if it finds that further treatment is likely to restore competency.
(4) Any facility providing inpatient services related to competency shall discharge the defendant as soon as the facility determines that the defendant is competent to stand trial. If the defendant is discharged to the custody of a correctional facility, the correctional facility must continue the medication regimen as prescribed by the facility providing inpatient services, when clinically appropriate, unless the defendant refuses to cooperate with medication and an involuntary medication order by the Court has not been entered.
(5) If the Court finds that competency has not or cannot be restored in a reasonable time, the Court shall dismiss the proceedings without prejudice and may refer the defendant for evaluation by a designated crisis responder.
(6) The competency restoration periods allowed in RCW 10.77.086 and 10.77.088 are per se reasonable. In determining whether a period of competency restoration beyond those allowed by the State of Washington is reasonable, the Court must consider the nature and classification of the offense, the defendant’s history of the same or similar conduct, the risk posed to the community by the defendant, and the likelihood of restoration. [Res. 2023-513 § 2].
2.27.040 Involuntary medication.
The Court may authorize involuntary medication for the purpose of competency restoration and for maintaining the level of restoration in the jail following the restoration period if the pending charge is a felony offense or a serious offense. [Res. 2023-513 § 2].
2.27.050 Serious offense.
To determine if a particular charge is a serious offense, the Court must consider the following:
(1) Whether the charge includes an allegation that the defendant inflicted bodily or emotional harm on another person or that the defendant created a reasonable apprehension of bodily or emotional harm to another;
(2) The extent of the impact of the alleged offense on the basic human need for security of visitors to or members of the community;
(3) The number and nature of related charges pending against the defendant and in the defendant’s history; and
(4) The number of potential and actual victims or persons impacted by the conduct charged. [Res. 2023-513 § 2].
2.27.060 Timeliness – Dismissal disfavored.
Dismissal of a criminal case is not the appropriate remedy for a violation of a time line imposed by the Court for the evaluation or restoration of a defendant where facility staff or the Tribes has in good faith attempted to comply with the Court’s order or there is evidence that the delay is caused by circumstances beyond the control of the Tribes or the facility charged with carrying out the Court’s order. [Res. 2023-513 § 2].