2006 Code of Virginia § 16.1-356 - Raising question of competency to stand trial; evaluation and determination of competency

16.1-356. Raising question of competency to stand trial; evaluation anddetermination of competency.

A. If, at any time after the attorney for the juvenile has been retained orappointed pursuant to a delinquency proceeding and before the end of trial,the court finds, sua sponte or upon hearing evidence or representations ofcounsel for the juvenile or the attorney for the Commonwealth, that there isprobable cause to believe that the juvenile lacks substantial capacity tounderstand the proceedings against him or to assist his attorney in his owndefense, the court shall order that a competency evaluation be performed byat least one psychiatrist, clinical psychologist, licensed professionalcounselor, licensed clinical social worker, or licensed marriage and familytherapist, who is qualified by training and experience in the forensicevaluation of juveniles.

The Commissioner of Mental Health, Mental Retardation and Substance AbuseServices shall approve the training and qualifications for individualsauthorized to conduct juvenile competency evaluations and provide restorationservices to juveniles pursuant to this article. The Commissioner shall alsoprovide all juvenile courts with a list of guidelines for the court to use inthe determination of qualifying individuals as experts in matters relating tojuvenile competency and restoration.

B. The evaluation shall be performed on an outpatient basis at a communityservices board or behavioral health authority, juvenile detention home orjuvenile justice facility unless the court specifically finds that (i) theresults of the outpatient competency evaluation indicate that hospitalizationof the juvenile for evaluation of competency is necessary or (ii) thejuvenile is currently hospitalized in a psychiatric hospital. If one of thesefindings is made, the court, under authority of this subsection, may orderthe juvenile sent to a hospital designated by the Commissioner of MentalHealth, Mental Retardation and Substance Abuse Services as appropriate forthe evaluation of juveniles against whom a delinquency petition has beenfiled.

C. The court shall require the attorney for the Commonwealth to provide tothe evaluators appointed under subsection A any information relevant to theevaluation, including, but not limited to (i) a copy of the warrant orpetition, (ii) the names and addresses of the attorney for the Commonwealth,the attorney for the juvenile, and the judge ordering the evaluation; and(iii) information about the alleged offense. The court shall require theattorney for the juvenile to provide to the evaluator only the psychiatricrecords and other information that is deemed relevant to the evaluation ofcompetency. The moving party shall provide the evaluator a summary of thereasons for the evaluation request. All information required by thissubsection shall be provided to the evaluator within 96 hours of the issuanceof the court order requiring the evaluation and when applicable, shall besubmitted prior to admission to the facility providing the inpatientevaluation. If the 96-hour period expires on a Saturday, Sunday or otherlegal holiday, the 96 hours shall be extended to the next day which is not aSaturday, Sunday or legal holiday.

D. If the juvenile is hospitalized under the provisions of subsection B, thejuvenile shall be hospitalized for such time as the director of the hospitaldeems necessary to perform an adequate evaluation of the juvenile'scompetency, but not to exceed 10 days from the date of admission to thehospital. All evaluations shall be completed and the report filed with thecourt within 14 days of receipt by the evaluator of all information requiredunder subsection C.

E. Upon completion of the evaluation, the evaluator shall promptly and in noevent exceeding 14 days after receipt of all required information submit thereport in writing to the court and the attorneys of record concerning (i) thejuvenile's capacity to understand the proceedings against him; (ii) hisability to assist his attorney; and (iii) his need for services in the eventhe is found incompetent, including a description of the suggested necessaryservices and least restrictive setting to assist the juvenile in restorationto competency. No statements of the juvenile relating to the alleged offenseshall be included in the report.

F. After receiving the report described in subsection E, the court shallpromptly determine whether the juvenile is competent to stand trial foradjudication or disposition. A hearing on the juvenile's competency is notrequired unless one is requested by the attorney for the Commonwealth or theattorney for the juvenile or when required under 16.1-357 B. If a hearingis held, the party alleging that the juvenile is incompetent shall bear theburden of proving by a preponderance of the evidence the juvenile'sincompetency. The juvenile shall have the right to notice of the hearing andthe right to personally participate in and introduce evidence at the hearing.

If the juvenile is otherwise able to understand the charges against him andassist in his defense, a finding of incompetency shall not be made basedsolely on any or all of the following: (i) the juvenile's age ordevelopmental factors, (ii) the juvenile's claim to be unable to remember thetime period surrounding the alleged offense, or (iii) the fact that thejuvenile is under the influence of medication.

(1999, cc. 958, 997; 2000, c. 337; 2005, c. 110.)

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