Washington Code 10.77.088 – Competency restoration — Procedure in nonfelony charge
Current as of: 2023 | Check for updates
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(1) If the defendant is charged with a nonfelony crime which is a serious offense as identified in RCW 10.77.092 and found by the court to be not competent, the court shall first consider all available and appropriate alternatives to inpatient competency restoration. If the parties agree that there is an appropriate diversion program available to accept the defendant, the court shall dismiss the proceedings without prejudice and refer the defendant to the recommended diversion program. If the parties do not agree that there is an appropriate diversion program available to accept the defendant, then the court:
Terms Used In Washington Code 10.77.088
- Admission: means acceptance based on medical necessity, of a person as a patient. See Washington Code 10.77.010
- Authority: means the Washington state health care authority. See Washington Code 10.77.010
- Commitment: means the determination by a court that a person should be detained for a period of either evaluation or treatment, or both, in an inpatient or a less-restrictive setting. See Washington Code 10.77.010
- Conditional release: means modification of a court-ordered commitment, which may be revoked upon violation of any of its terms. See Washington Code 10.77.010
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Department: means the state department of social and health services. See Washington Code 10.77.010
- detain: means the lawful confinement of a person, under the provisions of this chapter, pending evaluation. See Washington Code 10.77.010
- Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- History of one or more violent acts: means violent acts committed during: (a) The 10-year period of time prior to the filing of criminal charges; plus (b) the amount of time equal to time spent during the 10-year period in a mental health facility or in confinement as a result of a criminal conviction. See Washington Code 10.77.010
- person: may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. See Washington Code 1.16.080
- Professional person: means :
Washington Code 10.77.010Release: means legal termination of the court-ordered commitment under the provisions of this chapter. See Washington Code 10.77.010 Treatment: means any currently standardized medical or mental health procedure including medication. See Washington Code 10.77.010
(a) Shall dismiss the proceedings without prejudice and detain the defendant pursuant to subsection (6) of this section, unless the prosecutor objects to the dismissal and provides notice of a motion for an order for competency restoration treatment, in which case the court shall schedule a hearing within seven days.
(b) At the hearing, the prosecuting attorney must establish that there is a compelling state interest to order competency restoration treatment for the defendant. The court may consider prior criminal history, prior history in treatment, prior history of violence, the quality and severity of the pending charges, any history that suggests whether competency restoration treatment is likely to be successful, in addition to the factors listed under RCW 10.77.092. If the defendant is subject to an order under chapter 71.05 RCW or proceedings under chapter 71.05 RCW have been initiated, there is a rebuttable presumption that there is no compelling state interest in ordering competency restoration treatment. If the prosecuting attorney proves by a preponderance of the evidence that there is a compelling state interest in ordering competency restoration treatment, then the court shall issue an order in accordance with subsection (2) of this section.
(2)(a) If a court finds pursuant to subsection (1)(b) of this section that there is a compelling state interest in pursuing competency restoration treatment, the court shall order the defendant to receive outpatient competency restoration consistent with the recommendation of the forensic navigator, unless the court finds that an order for outpatient competency restoration is inappropriate considering the health and safety of the defendant and risks to public safety.
(b) To be eligible for an order for outpatient competency restoration, a defendant must be willing to:
(i) Adhere to medications or receive prescribed intramuscular medication;
(ii) Abstain from alcohol and unprescribed drugs; and
(iii) Comply with urinalysis or breathalyzer monitoring if needed.
(c) If the court orders inpatient competency restoration, the department shall place the defendant in an appropriate facility of the department for competency restoration under subsection (3) of this section.
(d) If the court orders outpatient competency restoration, the court shall modify conditions of release as needed to authorize the department to place the person in approved housing, which may include access to supported housing, affiliated with a contracted outpatient competency restoration program. The department, in conjunction with the health care authority, must establish rules for conditions of participation in the outpatient competency restoration program, which must include the defendant being subject to medication management. The court may order regular urinalysis testing. The outpatient competency restoration program shall monitor the defendant during the defendant’s placement in the program and report any noncompliance or significant changes with respect to the defendant to the department and, if applicable, the forensic navigator.
(e) If a defendant fails to comply with the restrictions of the outpatient competency restoration program such that restoration is no longer appropriate in that setting or the defendant is no longer clinically appropriate for outpatient competency restoration, the director of the outpatient competency restoration program shall notify the authority and the department of the need to terminate the outpatient competency restoration placement and intent to request placement for the defendant in an appropriate facility of the department for inpatient competency restoration. The outpatient competency restoration program shall coordinate with the authority, the department, and any law enforcement personnel under (e)(i) of this subsection to ensure that the time period between termination and admission into the inpatient facility is as minimal as possible. The time period for inpatient competency restoration shall be reduced by the time period spent in active treatment within the outpatient competency restoration program, excluding time periods in which the defendant was absent from the program and all time from notice of termination of the outpatient competency restoration period through the defendant’s admission to the facility. The department shall obtain a placement for the defendant within seven days of the notice of intent to terminate the outpatient competency restoration placement.
(i) The department may authorize a peace officer to detain the defendant into emergency custody for transport to the designated inpatient competency restoration facility. If medical clearance is required by the designated competency restoration facility before admission, the peace officer must transport the defendant to a crisis stabilization unit, evaluation and treatment facility, or emergency department of a local hospital for medical clearance once a bed is available at the designated inpatient competency restoration facility. The signed outpatient competency restoration order of the court shall serve as authority for the detention of the defendant under this subsection. This subsection does not preclude voluntary transportation of the defendant to a facility for inpatient competency restoration or for medical clearance, or authorize admission of the defendant into jail.
(ii) The department shall notify the court and parties of the defendant’s admission for inpatient competency restoration before the close of the next judicial day. The court shall schedule a hearing within five days to review the conditions of release of the defendant and anticipated release from treatment and issue appropriate orders.
(f) The court may not issue an order for outpatient competency restoration unless the department certifies that there is an available appropriate outpatient restoration program that has adequate space for the person at the time the order is issued or the court places the defendant under the guidance and control of a professional person identified in the court order.
(g) If the court does not order the defendant to receive outpatient competency restoration under (a) of this subsection, the court shall commit the defendant to the department for placement in a facility operated or contracted by the department for inpatient competency restoration.
(3) The placement under subsection (2) of this section shall not exceed 29 days if the defendant is ordered to receive inpatient competency restoration, and shall not exceed 90 days if the defendant is ordered to receive outpatient competency restoration. The court may order any combination of this subsection, but the total period of inpatient competency restoration may not exceed 29 days.
(4) Beginning October 1, 2023, if the defendant is charged with a serious traffic offense under RCW 9.94A.030, the court may order the clerk to transmit an order to the department of licensing for revocation of the defendant’s driver’s license for a period of one year. The court shall direct the clerk to transmit an order to the department of licensing reinstating the defendant’s driver’s license if the defendant is subsequently restored to competency, and may do so at any time before the end of one year for good cause upon the petition of the defendant.
(5) If the court has determined or the parties agree that the defendant is unlikely to regain competency, the court may dismiss the charges without prejudice without ordering the defendant to undergo competency restoration treatment, in which case the court shall order that the defendant be referred for evaluation for civil commitment in the manner provided in subsection (6) of this section.
(6)(a) If the proceedings are dismissed under RCW 10.77.084 and the defendant was on conditional release at the time of dismissal, the court shall order the designated crisis responder within that county to evaluate the defendant pursuant to chapter 71.05 RCW. The evaluation may be conducted in any location chosen by the professional.
(b) If the defendant was in custody and not on conditional release at the time of dismissal, the defendant shall be detained and sent to an evaluation and treatment facility for up to 120 hours if the defendant has not undergone competency restoration services or has engaged in outpatient competency restoration services and up to 72 hours if the defendant engaged in inpatient competency restoration services, excluding Saturdays, Sundays, and holidays, for evaluation for purposes of filing a petition under chapter 71.05 RCW. The 120-hour or 72-hour period shall commence upon the next nonholiday weekday following the court order and shall run to the end of the last nonholiday weekday within the 120-hour or 72-hour period.
(7) If the defendant is charged with a nonfelony crime that is not a serious offense as defined in RCW 10.77.092 and found by the court to be not competent, the court may stay or dismiss proceedings and detain the defendant for sufficient time to allow the designated crisis responder to evaluate the defendant and consider initial detention proceedings under chapter 71.05 RCW. The court must give notice to all parties at least 24 hours before the dismissal of any proceeding under this subsection, and provide an opportunity for a hearing on whether to dismiss the proceedings.
(8) If at any time the court dismisses charges under subsections (1) through (7) of this section, the court shall make a finding as to whether the defendant has a history of one or more violent acts. If the court so finds, the defendant is barred from the possession of firearms until a court restores his or her right to possess a firearm under RCW 9.41.047. The court shall state to the defendant and provide written notice that the defendant is barred from the possession of firearms and that the prohibition remains in effect until a court restores his or her right to possess a firearm under RCW 9.41.047.
(9) Any period of competency restoration treatment under this section includes only the time the defendant is actually at the facility or is actively participating in an outpatient competency restoration program and is in addition to reasonable time for transport to or from the facility.
[ 2023 c 453 § 9; 2023 c 433 § 19; 2022 c 288 § 5; 2020 c 18 § 4. Prior: 2019 c 326 § 5; 2019 c 248 § 1; 2016 sp.s. c 29 § 411; 2015 1st sp.s. c 7 § 6; 2007 c 375 § 5.]
NOTES:
Effective date—2023 c 453 §§ 7 and 9: “Sections 7 and 9 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately [May 15, 2023].” [ 2023 c 453 § 29.]
Findings—2023 c 453: See note following RCW 10.77.060.
Explanatory statement—2020 c 18: See note following RCW 43.79A.040.
Intent—2019 c 326: See note following RCW 10.77.074.
Effective dates—2016 sp.s. c 29: See note following RCW 71.05.760.
Short title—Right of action—2016 sp.s. c 29: See notes following RCW 71.05.010.
Finding—2015 1st sp.s. c 7: See note following RCW 10.77.075.
Effective dates—2015 1st sp.s. c 7: See note following RCW 10.77.075.
Findings—Purpose—Construction—Severability—2007 c 375: See notes following RCW 10.31.110.
Captions not law—2007 c 375: See note following RCW 10.77.084.