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2022 North Dakota Century Code
Title 12.1 - Criminal Code
Chapter 12.1-04 - Juveniles - Intoxication - Fitness to Proceed

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CHAPTER 12.1-04 JUVENILES - INTOXICATION - FITNESS TO PROCEED 12.1-04-01. Juveniles. 1. An individual under the age of ten years is deemed incapable of commission of an offense defined by the constitution or statutes of this state. The prosecution of an individual as an adult is barred if the offense was committed while the individual was less than fourteen years of age. 2. An individual ten years of age or older may be assessed for mental fitness or capacity under this chapter. 12.1-04-02. Intoxication. 1. Intoxication is not a defense to a criminal charge. Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 12.1-04-04. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged. 2. A person is reckless with respect to an element of an offense even though his disregard thereof is not conscious, if his not being conscious thereof is due to self-induced intoxication. 12.1-04-03. Lack of criminal responsibility a defense. Repealed by S.L. 1985, ch. 173, § 29. 12.1-04-04. Definitions. As used in this chapter, unless the context otherwise requires: 1. "Fitness to proceed" means sufficient present ability to consult with the individual's counsel with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against the individual. 2. "Least restrictive appropriate setting" means available treatment or service that best meets the identified need and is no more restrictive of physical or social liberties than what is necessary to meet the need. 3. "Therapeutically appropriate treatment" means treatment that provides the individual the greatest probability of improvement or cure. 12.1-04-04.1. Disposition of defendants - Lack of fitness to proceed - Records. 1. A defendant is presumed to be fit to stand trial, to plead, or to be sentenced. 2. An individual who lacks fitness to proceed may not be tried, convicted, or sentenced for the commission of an offense. 3. Any report filed pursuant to this chapter regarding "diagnosis, treatment, or treatment plans" must be kept confidential and may be reviewed only by the court or an appellate court, the state, the defense, the facility providing treatment as required by order of the court, and any other person as directed by the court. 12.1-04-05. Notice of defense, filing. Superseded by N.D.R.Crim.P., Rule 12.2. 12.1-04-06. Temporary detention for purposes of examination. Whenever there is reason to doubt the defendant's fitness to proceed, the court may order temporary detention of the defendant for the purpose of an examination. The temporary detention must be in the least restrictive appropriate setting, including the state hospital, the life skills and transition center, or other suitable facility for a reasonable period, not to exceed thirty days, for such examination. In lieu of detention, the court may allow the defendant to remain in the defendant's present residential setting or other suitable residential setting for the purpose of examination, subject to any reasonable limitation the court may impose. A human service center may be considered if the court is aware an inquiry was made before the court ordered the Page No. 1 evaluation to ensure appropriate resources exist at the human service center being ordered to conduct the examination. While the defendant is detained, the defendant's legal counsel, family, and others necessary to assist in the defendant's case must have reasonable opportunity to examine and confer with the defendant. 12.1-04-07. Examination - Report - Hearing when contested. 1. Whenever there is reason to doubt the defendant's fitness to proceed, the court shall order the defendant be examined by a tier 1a mental health professional. 2. An examination must occur within fifteen days from notice of entry of the order served upon the tier 1a mental health professional. Attorneys shall disclose any materials necessary to examine the fitness of the individual to the tier 1a examiner contemporaneously with the order. For good cause shown, the court may grant an extension allowing an additional seven days to complete the examination. 3. The report of the examining mental health professional, whether for a retrospective evaluation of fitness or an evaluation of the defendant's current fitness, must be provided to the court in writing within thirty days of the date of the examination. 4. The report must include: a. The identity of the individuals interviewed and records and other information considered. b. Procedures, tests, and techniques utilized in the assessment. c. The date and time of the examination of the defendant, and the identity of each individual present during the examination. d. The relevant information obtained, other information not obtained, and the defendant's responses to questions related to the defendant's fitness to proceed, except for any restricted, proprietary, copyrighted, or other information subject to trade secret protection which the examiner believes may be relevant, and the findings made. e. An opinion as to whether the defendant is fit to proceed, is able to understand the nature or purpose of the proceedings against the defendant, is able to effectively communicate with counsel, and whether the defendant will attain fitness to proceed within the time frames set forth in section 12.1-04-08. If the examiner is unable to determine whether the defendant will attain fitness within a specified period of time, the report must include the reasoning. The report may include a general description of the type of treatment needed and of the therapeutically appropriate treatment or other appropriate treatment. 5. If the findings of the report are contested, the court shall hold a hearing before deciding whether the defendant currently lacks fitness to proceed and whether the defendant will attain fitness to proceed. Upon hearing, the prosecution and defense have the right to summon and cross-examine the persons responsible for the report and to offer evidence upon the issues. 12.1-04-08. Suspension or dismissal of proceedings - Referral for services. 1. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed and the report as required under section 12.1-04-07 indicates a likelihood the defendant will attain fitness within a specified period of time from the date of the finding upon completion of a course of therapeutically appropriate treatment, the proceedings against the defendant must be suspended. For a defendant charged with a felony, the proceedings must be suspended for a period of up to one hundred eighty days. The court may extend the suspension for an additional three hundred sixty-five days if there is medical evidence to believe the defendant's fitness to proceed will be restored during the extended period. For a defendant charged with a misdemeanor, the proceedings must be suspended for a period no longer than the maximum term of imprisonment for the most serious offense charged. When the court determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the proceeding must be resumed. If prosecution of the defendant has not resumed or it is determined by the Page No. 2 2. 3. 4. 5. 6. court, after a hearing if a hearing is requested, that the defendant will not regain fitness to proceed within the allotted time, the charges against the defendant must be dismissed. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed and that the defendant will not attain fitness to proceed, the proceedings must be dismissed. The court may at any time make a referral for other appropriate services. Other appropriate services include: a. Determination of incapacity, by a district court with appropriate jurisdiction following petition by the state's attorney, for the appointment of a guardian or conservator pursuant to chapter 30.1-28 or 30.1-29; or b. Civil commitment of the person pursuant to chapter 25-03.1. If the court determines the defendant currently lacks fitness to proceed and the defendant may attain fitness to proceed under subsection 1, the court may enter an order for a course of treatment considering the least restrictive form of treatment therapeutically appropriate. a. Unless excused by the court, in a proceeding to determine therapy in an attempt to attain fitness, the defendant shall be represented by trial counsel. b. If the court finds the individual is not able to retain the services of a tier 1a mental health professional and that those services are not otherwise available, the court shall authorize reasonable expenditures from public funds to examine the individual. c. In a motion hearing to resume prosecution, the state or prosecuting authority must show by a preponderance of the evidence the defendant has attained fitness to proceed. If the court orders the defendant committed to a treatment facility in an attempt to attain fitness to proceed under subsection 1, the court shall provide the special custody and commitment terms in the order. The special terms of commitment must include an order for the defendant to accept all nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility, including the use of involuntary treatment with prescribed medication without the need for a separate commitment under chapter 25-03.1. a. If the order does not indicate the terms of commitment, the director or superintendent of the treatment facility may determine the nature of the constraints necessary within the treatment facility to carry out the order of the court. b. If the court orders an individual committed for therapeutic treatment to attain fitness to proceed, the court shall set a date consistent with the timeline established in this section for a review of the defendant's fitness to proceed. At least sixty days before the date specified for review, the director or director's designee or the superintendent of the treatment facility shall inquire as to whether the individual is represented by counsel and file a written report of the facts ascertained with the court. If the parties to the action have reason to modify the special terms of the commitment order under this section, the parties shall make a motion to the court and the court shall determine by a preponderance of the evidence if the modification of the special terms is necessary and the least restrictive therapeutic alternative therapy in an attempt to attain fitness to proceed. The custodian, guardian, or other person charged with the control of the defendant may take an appeal from the court's order in the manner provided by law. 12.1-04-09. Legal objections to prosecution allowed. The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution which is susceptible of fair determination prior to trial and without the personal participation of the defendant. Page No. 3 12.1-04-10. Acquittal due to mental disease or defect - Petition to clerk of court. Repealed by S.L. 1985, ch. 173, § 29. Page No. 4
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