N.M. Stat. § 31-9-1.5 (2026)

evidentiary hearing.
   A. If the court determines that there is not a substantial probability that a defendant
who is not competent to stand trial will be restored to competency, a commitment
hearing to determine the sufficiency of the evidence of the defendant's guilt shall be
held if the defendant is charged with:

        (1)   murder in the first or second degree, as provided in Section 30-2-1 NMSA
1978;

      (2)  a felony involving infliction of great bodily harm, as defined in Section 30-
1-12 NMSA 1978, on another person;

        (3)   criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

        (4)   criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA
1978;

        (5)   abuse of a child, as provided in Subsection D of Section 30-6-1 NMSA
1978;

        (6)  a crime provided for in the Sexual Exploitation of Children Act [Chapter 30,
Article 6A NMSA 1978];

        (7)   human trafficking, as provided in Section 30-52-1 NMSA 1978;

        (8)   aggravated arson, as provided in Section 30-17-6 NMSA 1978; or

        (9)   any "serious violent offense" enumerated in Subparagraphs (a) through
(n) of Paragraph (4) of Subsection L [N] of Section 33-2-34 NMSA 1978 with the use of
a firearm.

    B. A criminal commitment hearing shall be conducted by the district court without a
jury. The state and the defendant may introduce evidence relevant to the question of
the defendant's guilt of the crime charged. The district court may admit hearsay or
affidavit evidence on secondary matters such as testimony to establish the chain of
possession of physical evidence, laboratory reports, authentication of transcripts taken
by official reporters, district court and business records and public documents.
    C. If the evidence does not establish by clear and convincing evidence that the
defendant committed the crime charged, the district court shall dismiss the criminal case
with prejudice.

    D. If the district court finds by clear and convincing evidence that the defendant
committed the crime charged and has not made a finding of dangerousness in
accordance with Section 31-9-1.2 NMSA 1978, the district court shall dismiss the
criminal case without prejudice.

   E. If the district court finds by clear and convincing evidence that the defendant
committed the crime charged and enters a finding that the defendant remains not
competent to stand trial and remains dangerous as determined by the court in
accordance with Section 31-9-1.2 NMSA 1978:

      (1)      the defendant shall be detained by the department of health in a secure,
locked facility;

       (2)    the defendant shall not be released from that secure facility except
pursuant to an order of the court that committed the defendant or upon expiration of the
period of time equal to the maximum sentence to which the defendant would have been
subject had the defendant been convicted in a criminal proceeding;

      (3)   significant changes in the defendant's condition, including trial competency
and dangerousness, shall be reported in writing to the district court, state and defense;
and

       (4)    at least every two years, the district court shall conduct a hearing upon
notice to the parties and the department of health charged with detaining the defendant.
At the hearing, the court shall enter findings on the issues of trial competency and
dangerousness:

          (a) upon a finding that the defendant is competent to proceed in a criminal
case, the court shall continue with the criminal proceeding;

           (b) if the defendant continues to remain not competent to stand trial and
dangerous in accordance with Section 31-9-1.2 NMSA 1978, the court shall review the
defendant's competency and dangerousness every two years until expiration of the
period of commitment equal to the maximum sentence to which the defendant would
have been subject had the defendant been convicted in a criminal proceeding; and

          (c) if the court finds upon its two-year review hearing that the defendant is no
longer dangerous, the defendant shall be released.

   F. At any time, including after a court dismisses a case against a defendant, the
department of health or the district attorney may initiate involuntary commitment
proceedings in accordance with the Mental Health and Developmental Disabilities Code
[Chapter 43, Article 1 NMSA 1978] or proceedings in accordance with the Assisted
Outpatient Treatment Act [43-1B-1 to 43-1B-14 NMSA 1978]. If the district attorney
indicates an intent to initiate involuntary commitment proceedings in accordance with
the Mental Health and Developmental Disabilities Code, the court may detain the
defendant for a maximum of seven days only to facilitate the initiation of those
proceedings at any licensed psychiatric hospital.

History: 1978 Comp., § 31-9-1.5, enacted by Laws 1988, ch. 107, § 6 and by 1988, ch.
108, § 6; 1993, ch. 240, § 6; 1993, ch. 249, § 6; 1999, ch. 149, § 4; 2025, ch. 4, § 6.

                                     ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not
part of the law. Laws 2025, ch. 79, § 4 and Laws 2025, ch. 29, § 1 amended 33-2-34
NMSA 1978, relettering subsections, effective June 20, 2025.

Cross references. — For rule of criminal procedure governing defenses of insanity,
incompetency, and lack of capacity, see Rule 5-602 NMRA.

The 2025 amendment, effective June 20, 2025, modified the list of offenses for criminal
commitment proceedings, and allowed the department of health or district attorneys to
initiate involuntary commitment proceedings under the Mental Health and
Developmental Disabilities Code or the Assisted Outpatient Treatment Act, with
detention limited to seven days to facilitate such proceedings; in the section heading,
after "competency", added "criminal commitment"; in Subsection A, in the introductory
clause, after the subsection designation, deleted "As provided for in Subsection A of
Section 31-9-1.4 NMSA 1978, A" and added "If the court determines that there is not a
substantial probability that a defendant who is not competent to stand trial will be
restored to competency, a commitment", after "sufficiency of the evidence", added "of
the defendant's guilt", after "shall be held if", deleted "the case is not dismissed and if",
and after "defendant is charged with", deleted the remainder of the paragraph, and
added Paragraphs A(1) through A(9); added new subsection designation "B" and
redesignated formers Subsections B through D as Subsections C through E,
respectively; in Subsection B, after the subsection designation, added "A criminal
commitment"; in Subsection C, after "the defendant committed", deleted "a felony that
involves the infliction of great bodily harm on another person; a felony that involves the
use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978;
criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal
sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978" and added "the
crime charged", after "dismiss the case with prejudice", deleted the remainder of the
paragraph; in Subsection D, deleted the last sentence of the paragraph; in Subsection
E, in the introductory paragraph, after "the defendant committed", deleted "a felony that
involves the infliction of great bodily harm on another person; a felony that involves the
use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA 1978;
criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; or criminal
sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978" and added "the
crime charged", in Paragraph E(4), Subparagraph E(4)(b), after "convicted in a criminal
proceeding", deleted "provided that if the treatment supervisor recommends that the
defendant be committed pursuant to the Mental Health and Developmental Disabilities
Code, the court may at any time proceed pursuant to Subsection C of Section 31-9-1.4
NMSA 1978", and in Subparagraph E(4)(c), after the subparagraph designation, deleted
"if the defendant is not committed pursuant to Sections 31-9-1 through 31-9-1.5 NMSA
1978 or"; and added a new Subsection F.

The 1999 amendment, effective June 18, 1999, inserted "if the case is not dismissed
and if the defendant is charged with a felony that involves the infliction of great bodily
harm on another person; a felony that involves the use of a firearm; aggravated arson,
as provided in Section 30-17-6 NMSA 1978; criminal sexual penetration, as provided in
Section 30-19-11 NMSA 1978; or criminal sexual contact of a minor, as provided in
Section 30-9-13 NMSA 1978" in Subsection A; in Subsections B and D substituted "a
felony that involves the infliction of great bodily harm on another person; a felony that
involves the use of a firearm; aggravated arson, as provided in Section 30-17-6 NMSA
1978; criminal sexual penetration, as provided in Section 30-19-11 NMSA 1978; or
criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978" for "a
crime"; inserted "and the court may order the defendant confined for a maximum of
seven days to facilitate preparation and initiation of a petition pursuant to that code" in
Subsections C and D; substituted "Section 31-9-1.2" for "Subsections B and C of
Section 39-1-1.2" in Subsection C; substituted "enters" for "has previously made" and
"remains incompetent to proceed and remains" for "is"; and deleted "Subsections B and
C of" following "pursuant to" in Subsection D; inserted "and dangerous pursuant to
Section 31-9-1.2 NMSA 1978", deleted "subject" following "convicted" and added the
proviso in Subsection D(4)(b), and deleted "Subsection G of" following "defined in" in
Subsection D(4)(c).

The 1993 amendment, effective June 18, 1993, rewrote the section to the extent that a
detailed comparison is impracticable. This section was also amended by Laws 1993, ch.
240, § 6, effective June 18, 1993. The section was set out as amended by Laws 1993,
ch. 249, § 6. See 12-1-8 NMSA 1978.

Felonies involving great bodily harm. — Subsection D of Section 31-9-1.5 NMSA
1978 allows the criminal commitment of a defendant who commits a felony in a manner
that results in great bodily harm to another person and is not limited only to felonies that
contain the infliction of great bodily harm as an element necessary for conviction. State
v. Lopez, 2011-NMCA-071, 150 N.M. 14, 256 P.3d 977, cert. denied, 2011-NMCERT-
005, 150 N.M. 666, 265 P.3d 717.

Robbery. — Where, at a commitment hearing, the parties stipulated that defendant
approached an employee of a hotel in the hotel laundry room, struck the employee in
the face with a closed fist, beat the employee over the head with a hard plastic tube,
took the keys to the hotel office, and took money from the hotel cash drawer; and the
court found that defendant had committed armed robbery that resulted in great bodily
harm to the victim, the court did not err in ordering defendant’s commitment. State v.
Lopez, 2011-NMCA-071, 150 N.M. 14, 256 P.3d 977, cert. denied, 2011-NMCERT-005,
150 N.M. 666, 265 P.3d 717.

Standard of proof. — The appropriate standards of proof for the initial determination as
well as the redetermination of competency is a preponderance of the evidence. State v.
Chavez, 2008-NMSC-001, 143 N.M. 205, 174 P.3d 988.

Credit for presentence confinement. — Presentence confinement credit should be
credited to criminal commitment under Subsection D of Section 31-9-1.5 NMSA 1978 to
the same extent the confinement would have been credited against a sentence for a
criminal conviction. State v. Lopez, 2011-NMCA-071, 150 N.M. 14, 256 P.3d 977, cert.
denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Where, before trial, the court found that defendant was incompetent to proceed to trial
and that defendant had committed robbery that resulted in great bodily harm to another
person and the court committed defendant to twelve years, defendant was entitled to
presentence confinement credit toward the commitment period. State v. Lopez, 2011-
NMCA-071, 150 N.M. 14, 256 P.3d 977, cert. denied, 2011-NMCERT-005, 150 N.M.
666, 265 P.3d 717.

Credit for pre-conviction confinement. — To the extent that defendant’s pre-
conviction confinement would have been credited against defendant’s sentence had
defendant been convicted of a crime, defendant’s pre-conviction confinement must be
credited against the term of defendant’s criminal commitment. State v. Lopez, 2009-
NMCA-112, 147 N.M. 279, 219 P.3d 1288, cert. denied, 2009-NMCERT-009, 147 N.M.
421, 224 P.3d 648.

Where defendant was committed for treatment to attain competency to stand trial for a
period of two years and two months before defendant was committed for a third-degree
felony offense of aggravated battery against a household member, the period of
defendant’s pre-conviction confinement should have been credited to the term of
defendant’s criminal commitment. State v. Lopez, 2009-NMCA-112, 147 N.M. 279, 219
P.3d 1288, cert. denied, 2009-NMCERT-009, 147 N.M. 421, 224 P.3d 648.

This section does not violate any constitutional guarantee. State v. Adonis, 2008-
NMSC-059, 145 N.M. 102, 194 P.3d 717.

Jurisdiction of an appeal of a lifetime criminal commitment lies with the supreme
court. — Where defendant was charged with an open count of murder, and where the
district court found by clear and convincing evidence that defendant committed first-
degree murder, determined that defendant was dangerous and not competent to stand
trial, and ordered that defendant be detained for life by the New Mexico department of
health pursuant to 31-9-1.5(D) NMSA 1978, jurisdiction of defendant's appeal properly
lied in the New Mexico supreme court, because commitment pursuant to 31-9-1.5
NMSA 1978 results in a loss of liberty, and the deprivation of liberty resulting from a
lifetime criminal commitment is equivalent to the deprivation of liberty under a lifetime
criminal sentence, and N.M. Const. Art. VI, § 2 confers jurisdiction on the New Mexico
supreme court for cases imposing a sentence of life imprisonment. State v. Baca,
2019-NMSC-014.

Sufficient evidence of willful and deliberate murder. — Where defendant was
charged with an open count of murder for killing his father with a pickaxe, and where the
district court found by clear and convincing evidence that defendant committed first-
degree murder, determined that defendant was dangerous and not competent to stand
trial, and ordered that defendant be detained for life by the New Mexico department of
health pursuant to 31-9-1.5(D) NMSA 1978, and where defendant conceded that he
killed his father, evidence that the killing involved a prolonged, sustained attack and
defendant's statements and actions before, during, and after the killing, including arming
himself with the pickaxe, was sufficient to establish that the murder was willful,
deliberate, and premeditated. State v. Baca, 2019-NMSC-014.

The basic sentences for misdemeanor crimes cannot be used to calculate the term
of commitment under Subsection D of this section. State v. Demongey, 2008-NMCA-
066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 560,
263 P.3d 902.

Redetermination of competency. — The proper standard of proof for a
redetermination of the competency of a defendant to stand trial, following a prior
determination that the defendant is incompetent to stand trial, is a preponderance of the
evidence. State v. Chavez, 2008-NMSC-001, 143 N.M. 205, 174 P.3d 988.

Generally. — Commitment pursuant to this section is not punishment. State v. Spriggs-
Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65
P.3d 1094.

Constitutionality. — This section does not unconstitutionally deprive defendants of due
process. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert.
denied, 133 N.M. 539, 65 P.3d 1094.

This section does not abrogate a defendant's constitutional rights. State v. Spriggs-
Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65
P.3d 1094.

Competency determinations implicate due process. — Competency determinations
implicate due process rights. A court violates a defendant’s due process rights when it
fails to inquire into competency after the defendant presents enough evidence to entitle
him to a hearing on the issue. A hearing on the defendant’s competency requires
adequate notice, an adversarial hearing before an independent decision-maker, and a
written statement from the fact finder clarifying the evidence relied upon and reasons for
the decision. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008.
Where defendant was charged with numerous counts of attempted first-degree murder
and other serious charges related to an incident where he trapped four adults and two
children in a trailer and threatened them with firearms over several hours, the initial
district judge, following a competency hearing, found that defendant was not competent
to stand trial, that he was dangerous, and that he was not likely to become competent;
defendant was then provided a hearing before a different district court judge for the sole
purpose of determining whether defendant had mental retardation; the second district
court judge found, on her own motion, without notice, and without any argument from
the state, that defendant had been proved competent beyond a reasonable doubt;
defendant was denied his procedural right to effective and timely notice and the
opportunity to present arguments and evidence before having a decision rendered
against him as to competency; moreover the district judge, in failing to examine the
factors for determining competency, never provided defendant with any justification for
the decision and subsequent actions. State v. Gutierrez, 2015-NMCA-082, cert. denied,
2015-NMCERT-008.

The prosecution of a defendant who is incompetent to stand trial violates due
process. — Where defendant was tried and convicted of numerous counts of attempted
first-degree murder and other serious charges related to an incident where he trapped
four adults and two children in a trailer and threatened them with firearms over several
hours, the initial district judge found, following a competency hearing prior to trial, that
defendant was not competent to stand trial, that he was dangerous, and that he was not
likely to become competent; defendant was later provided a hearing before a different
district judge for the sole purpose of determining whether defendant had mental
retardation; the second district court judge found that defendant had been proved
competent beyond a reasonable doubt without making any findings as to whether
defendant understood the nature and significance of the proceedings, whether
defendant had a factual understanding of the charges or whether defendant was able to
assist in his own defense, and, without any evidence presented regarding whether
defendant had made or could make progress toward competency, disregarded the prior
ruling made by the initial district judge that it was unlikely defendant would attain
competency in the future; the evidence presented at the mental retardation hearing was
insufficient to rebut the existing presumption that defendant was incompetent to stand
trial. Defendant’s trial violated due process. State v. Gutierrez, 2015-NMCA-082, cert.
denied, 2015-NMCERT-008.

The district court did not err in committing defendant to a behavior health facility.
— Where defendant was charged by criminal complaint for one count of aggravated
burglary (armed after entering) for entering a vehicle that did not belong to him, taking a
firearm from the vehicle and carrying, displaying and negligently handling the weapon
while trespassing on several residential properties, and where, after a competency
evaluation and a hearing on dangerousness, the district court determined defendant to
be incompetent and dangerous and ordered defendant to be committed and treated to
competency, and where, after a criminal commitment hearing, the district court found by
clear and convincing evidence that defendant committed a felony which involved the
use of a firearm and that defendant remained both incompetent and dangerous, and
therefore ordered defendant to be committed to a behavioral health facility for up to nine
years, subject to periodic review of his mental health status, the district court did not err
in ordering defendant to be committed to a behavioral health facility, because
aggravated burglary (armed after entering) qualifies as a felony involving the use of a
firearm and there was sufficient evidence to support the district court's finding that
defendant entered a vehicle without authorization with the intent to commit a felony or
theft therein and after entering, armed himself with a deadly weapon, and that this act
involved the use of a firearm. State v. Rodgers, 2025-NMCA-023, cert. denied.

Suppression. — Suppression hearing is not a legal impossibility at a hearing pursuant
to this section; the statute does not preclude a defendant's attorney from putting on a
complete defense at such a hearing. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M.
479, 64 P.3d 506, cert. denied, 133 N.M. 539, 65 P.3d 1094.

Defendant, who was found incompetent to stand trial for first degree murder, was
incompetent to knowingly and intelligently waive her constitutional rights; thus all of
defendant's statements made after the first administration of her Miranda rights had to
be suppressed. State v. Spriggs-Gore, 2003-NMCA-046, 133 N.M. 479, 64 P.3d 506,
cert. denied, 133 N.M. 539, 65 P.3d 1094.

Proof of state of mind required. — In a case of first degree murder, the state has to
prove a deliberate intention to kill, which "may be inferred from all of the facts and
circumstances of the killing." At a hearing under this section, the defendant is equally
entitled to marshal a factual case that disproves either direct or inferential evidence that
he had formed, or had the opportunity to form, a deliberate intent to kill. State v. Taylor,
2000-NMCA-072, 129 N.M. 376, 8 P.3d 863, cert. quashed, 131 N.M. 64, 33 P.3d 284.

Defenses not available at Subsection A hearing. — The defenses of insanity and
inability to form a specific intent are not available at a hearing conducted pursuant to
Subsection A. State v. Werner, 1990-NMCA-019, 110 N.M. 389, 796 P.2d 610, cert.
denied, 109 N.M. 704, 789 P.2d 1271.

Trial court may draw inference as to dangerousness. — When the trial court has
found that a defendant has cruelly treated a two-year-old child by holding her foot in hot
water for half a minute and has injured his brother with a knife in the course of a family
argument, the trial court may properly draw an inference that defendant is dangerous.
State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert. denied, 111 N.M.
77, 801 P.2d 659.

Finding of dangerousness as prerequisite to detention. — In the context of the
competency statutes, the finding of dangerousness is a prerequisite to the applicability
of the portions of the statute allowing defendant to be detained for a longer period of
time. Thus, the court must make a finding of dangerousness prior to the detention
authorized by this section, but it need not have made such a finding at a prior hearing.
State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert. denied, 111 N.M.
77, 801 P.2d 659.
Enhancement of commitment term must relate to dangerousness. — A defendant
cannot be criminally committed under a sentence enhancement unless the conduct
invoking the enhancement is a specific marker of dangerousness as defined by statute.
State v. Chorney, 2001-NMCA-050, 130 N.M. 638, 29 P.3d 538.

A term of criminal commitment may be increased due to aggravating
circumstances that relate to a defendant’s dangerousness. — A term of
commitment under this section may be increased under NMSA 1978, § 31-18-15.1 due
to aggravating circumstances that bear a direct relation to a defendant’s dangerousness
and that are supported by clear and convincing evidence. State v. Quintana, 2021-
NMSC-013, aff’g 2019-NMCA-030.

District court did not err in enhancing defendant’s term of criminal commitment.
— Where, following a criminal commitment hearing, the district court found that clear
and convincing evidence existed to show that defendant committed the crime of second
degree murder, and further found, following a subsequent evidentiary hearing, that the
murder had been committed with extreme viciousness and brutality, including the near
decapitation of the body, the removal of the genitals, the stabbing of the anus, as well
as the numerous wounds to the decedent’s head and torso, and that defendant
represented a threat to community safety because if released without supervision, there
was a danger that defendant would be medically non-compliant and that his psychosis
would return, the district court did not err in enhancing defendant’s sentence by five
years for a total commitment of twenty years, representing the maximum time to which
defendant would have been subject had defendant been convicted of the charged
offense, because this section clearly indicates that determination of a term of criminal
commitment should correspond to the maximum sentence that would have been
reached under the Criminal Sentencing Act, including potential enhancement based on
aggravating circumstances. State v. Quintana, 2021-NMSC-013, aff’g 2019-NMCA-
030.

Commitment period may be enhanced based on aggravating circumstances. —
Where defendant was charged with an open count of murder, and where after a hearing
on defendant's competency to proceed to trial, the parties stipulated that the evidence
was clear and convincing that defendant had committed the crime of second-degree
murder, the district court did not err in ordering defendant to be committed to the New
Mexico Behavioral Health Institute for fifteen years plus five years for aggravating
circumstances based in part on the extreme viciousness and brutality of defendant's
conduct, because this section permits a commitment equal to the maximum sentence to
which the defendant would have been subject had the defendant been convicted in a
criminal proceeding, and the legislature has made clear that a sentence may consist of
a basic sentence plus additional terms of imprisonment to be imposed after assessment
of additional factors. State v. Quintana, 2019-NMCA-030, cert. granted.

Habitual offender enhancement does not apply. — The habitual offender
enhancement (Section 31-18-17 NMSA 1978) does not apply to extend a defendant's
criminal incompetency commitment. State v. Chorney, 2001-NMCA-050, 130 N.M. 638,
29 P.3d 538.

Defendant's attorney may act as advocate. — There is nothing in the statute on its
face that precludes defendant's attorney from acting as an advocate at a hearing under
this section. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert.
denied, 111 N.M. 77, 801 P.2d 659.