Virginia Code

Va. Code Ann. § 19.2-169.2 (2026)

Disposition when defendant found incompetent

✓ current as of May 2026

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A. Upon finding pursuant to subsection E or F of § 19.2-169.1 that the defendant, including a juvenile transferred pursuant to § 16.1-269.1, is incompetent, the court shall order that the defendant receive treatment to restore his competency on an outpatient basis or, if the court specifically finds that the defendant requires inpatient hospital treatment, at a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for treatment of persons under criminal charge. Outpatient treatment may occur in a local correctional facility or at a location determined by the appropriate community services board or behavioral health authority. Notwithstanding the provisions of § 19.2-178, if the court orders inpatient hospital treatment, the defendant shall be transferred to and accepted by the hospital designated by the Commissioner as soon as practicable, but no later than 10 days, from the receipt of the court order requiring treatment to restore the defendant's competency. If the 10-day period expires on a Saturday, Sunday, or other legal holiday, the 10 days shall be extended to the next day that is not a Saturday, Sunday, or legal holiday. Any psychiatric records and other information that have been deemed relevant and submitted by the attorney for the defendant pursuant to subsection C of § 19.2-169.1 and any reports submitted pursuant to subsection D of § 19.2-169.1 shall be made available to the director of the community services board or behavioral health authority or his designee or to the director of the treating inpatient facility or his designee within 96 hours of the issuance of the court order requiring treatment to restore the defendant's competency. If the 96-hour period expires on a Saturday, Sunday, or other legal holiday, the 96 hours shall be extended to the next day that is not a Saturday, Sunday, or legal holiday.

B. If, at any time after the defendant is ordered to undergo treatment under subsection A, the director of the community services board or behavioral health authority or his designee or the director of the treating inpatient facility or his designee believes the defendant's competency is restored, the director or his designee shall immediately send a report to the court as prescribed in subsection D of § 19.2-169.1. The court shall make a ruling on the defendant's competency according to the procedures specified in subsection E of § 19.2-169.1.

C. Notwithstanding the provisions of subsection A, in cases in which (i) the defendant has been charged with a misdemeanor violation of Article 3 (§ 18.2-95 et seq.) of Chapter 5 of Title 18.2 or a misdemeanor violation of § 18.2-119, 18.2-137, 18.2-388, 18.2-415, or 19.2-128; (ii) the defendant has been found to be incompetent pursuant to subsection E or F of § 19.2-169.1; and (iii) the competency report described in subsection D of § 19.2-169.1 recommends that the defendant be evaluated to determine whether he meets the criteria for temporary detention pursuant to § 37.2-809, the court may order the community services board or behavioral health authority serving the jurisdiction in which the defendant is located to (a) conduct an evaluation of the defendant and (b) if the community services board or behavioral health authority determines that the defendant meets the criteria for temporary detention, file a petition for issuance of an order for temporary detention pursuant to § 37.2-809. The community services board or behavioral health authority shall notify the court, in writing, within 72 hours of the completion of the evaluation and, if appropriate, file a petition for issuance of an order for temporary detention. Upon receipt of such notice, the court may dismiss the charges without prejudice against the defendant. However, the court shall not enter an order or dismiss charges against a defendant pursuant to this subsection if the attorney for the Commonwealth is involved in the prosecution of the case and the attorney for the Commonwealth does not concur in the motion.

D. If a defendant for whom an evaluation has been ordered pursuant to subsection C fails or refuses to appear for the evaluation, the community services board or behavioral health authority shall notify the court and the court shall issue a mandatory examination order and capias directing the primary law-enforcement agency for the jurisdiction in which the defendant resides to transport the defendant to the location designated by the community services board or behavioral health authority for examination.

E. The clerk of the court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of an order for treatment issued pursuant to subsection A.

1982, c. 653; 2003, c. 735; 2007, c. 781; 2008, cc. 751, 788; 2009, cc. 813, 840; 2014, cc. 373, 408; 2017, c. 461; 2020, c. 937; 2022, c. 508; 2023, cc. 229, 230.

Notes of Decisions

Cited in 16 cases (4 in the last 5 years), 1996–2025 · leading case: Adams v. NaphCare, Inc., 246 F. Supp. 3d 1128 (E.D. Va. 2017).

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Adams v. NaphCare, Inc., 246 F. Supp. 3d 1128 (E.D. Va. 2017). · cites it 24× “(citing Va. Code § 19.2-169.2). The Plaintiff alleges that this latter statute requires the Commissioner, not a subordinate or the DBHDS itself, to designate a hospital appropriate for such treatment.”

Brown v. Commonwealth, 702 S.E.2d 582 (Va. Ct. App. 2010). · cites it 2× “The Fairfax County General District Court issued an order referring appellant to Western State Hospital for treatment to restore his competency, pursuant to Code § 19.2-169.2. After *387 Dr. Rebecca J.”

Zelenak v. Commonwealth, 487 S.E.2d 873 (Va. Ct. App. 1997). · cites it 2× “5, or treatment ordered pursuant to § 19.2-169.2 or § 19.2-169.6 may be used against the defendant at trial as evidence or as a basis for such evidence, except on the issue of his mental condition at the time of the offense after he raises the issue pursuant to § 19.”

In re: Vauter, 793 S.E.2d 793 (Va. 2016). · cites it 3× “" By order on November 17, 2014, the court found that "Murphy remains incompetent to stand trial, that continued treatment **767 is medically appropriate, and that the defendant presents a danger to himself and others," and ordered continued treatment under Code § 19.2-169.2. 4…”

Burns v. Com., 688 S.E.2d 263 (Va. 2010). · cites it 2× “Burns' counsel filed a motion to declare Burns incompetent and to secure treatment, pursuant to Code § 19.2-169.2, to restore Burns to competence.”

FURDA v. State, 997 A.2d 856 (Md. Ct. Spec. App. 2010). ““Based upon these findings, and with the consent of both Midgett’s attorney and the attorney for the Commonwealth,” the court issued an order committing the defendant “to the custody of the Central State Hospital for mental health treatment under Va.Code Ann. § 19.2-169.2…”

Zelenak v. Commonwealth, 475 S.E.2d 853 (Va. Ct. App. 1996). · cites it 2× “5, or treatment ordered pursuant to § 19.2-169.2 or § 19.2-169.6 may be used against the defendant at trial as evidence or as a basis for such evidence, except on the issue of his mental condition at the time of the offense after he raises the issue pursuant to § 19.”

Lisa Schulken Bartosch v. Commonwealth of Virginia (Va. Ct. App. 2022). · cites it 4× “” Accordingly, they requested another restoration order pursuant to Code § 19.2-169.2 so that Bartosch could receive further treatment.”

Roxanne Adams v. Debra Ferguson, 884 F.3d 219 (2018). “1-32(A) ("It shall be the general purpose of the state correctional facilities to provide .”

Martinez v. Commonwealth (PUBLISHED ORDER), 821 S.E.2d 529 (Va. 2018). · cites it 2× “The court ordered that he receive inpatient treatment to restore his competency pursuant to Code § 19.2-169.2. From 2006 through 2013, Martinez received in-patient treatment and the circuit court conducted biannual evaluations to determine whether Martinez remained incompetent.”

Kapoor v. W. State Hosp. Emp. & Dir. (W.D. Va. 2022). · cites it 2× “; Va. Code Ann. §§ 19.2-169.2 , 19.2-169.5.”

Kerry Lennell Boone v. Commonwealth of Virginia (Va. Ct. App. 2025). · cites it 2× “Pursuant to Code § 19.2-169.2(A), the court’s determination that a party requires 9 inpatient competency restoration services must follow a finding of incompetency, meaning that the party “lacks substantial capacity to understand the proceedings against him or to assist his…”

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— Va. Code Ann. § 19.2-169.2(A) — 3 cases

Adams v. NaphCare, Inc., 246 F. Supp. 3d 1128 (E.D. Va. 2017). “(citing Va. Code § 19.2-169.2). The Plaintiff alleges that this latter statute requires the Commissioner, not a subordinate or the DBHDS itself, to designate a hospital appropriate for such treatment.”

Lisa Schulken Bartosch v. Commonwealth of Virginia (Va. Ct. App. 2022). “” Accordingly, they requested another restoration order pursuant to Code § 19.2-169.2 so that Bartosch could receive further treatment.”

Kerry Lennell Boone v. Commonwealth of Virginia (Va. Ct. App. 2025). “Pursuant to Code § 19.2-169.2(A), the court’s determination that a party requires 9 inpatient competency restoration services must follow a finding of incompetency, meaning that the party “lacks substantial capacity to understand the proceedings against him or to assist his…”

— Va. Code Ann. § 19.2-169.2(B) — 1 case

Commonwealth v. Murphy, 56 Va. Cir. 109 (Alexandria Cir. Ct. 2001).

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