§ 15A-1003.  (Effective until December 1, 2026) Referral of incapable defendant for civil commitment proceedings.

(a) When a defendant is found to be incapable of proceeding, the presiding judge, upon such additional hearing, if any, as he determines to be necessary, shall determine whether there are reasonable grounds to believe the defendant meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes. If the presiding judge finds reasonable grounds to believe that the defendant meets the criteria, he shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes. If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the judge's custody order shall require a law-enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252; and the order must indicate that the defendant was charged with a violent crime and that he was found incapable of proceeding.

(a1) Prior to the dismissal of any charges pursuant to G.S. 15A-1008, if the defendant is not subject to an involuntary commitment order issued pursuant to Part 7 of Article 5 of Chapter 122C of the General Statutes, the court shall make the determinations and findings required by subsection (a) of this section upon motion of the district attorney.

(b) The court may make appropriate orders for the temporary detention of the defendant pending that proceeding.

(c) Evidence used at the hearing with regard to capacity to proceed is admissible in the involuntary civil commitment proceedings.  (1973, c. 1286, s. 1; 1975, c. 166, s. 20; 1983, c. 380, s. 1; 1985, c. 589, s. 10; 1987, c. 596, s. 5; 2025-93, s. 7(a).)

§ 15A-1003.  (Effective December 1, 2026) Procedure upon finding a defendant incapable to proceed.

(a) When a defendant is found to be incapable of proceeding, the presiding judge, upon such additional hearing, if any, as he determines to be necessary, shall determine whether there are reasonable grounds to believe the defendant meets the criteria for involuntary commitment under Part 7 of Article 5 of Chapter 122C of the General Statutes. If the presiding judge finds reasonable grounds to believe that the defendant meets the criteria, he shall make findings of fact and issue a custody order in the same manner, upon the same grounds and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes. If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the judge's custody order shall require a law-enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252, as space is available; and the order must indicate that the defendant was charged with a violent crime and that he was found incapable of proceeding.

(a1) Repealed by Session Laws 2026-38, s. 13(d), effective December 1, 2026, and applicable to any initial or supplemental capacity hearing conducted on or after that date.

(b) Repealed by Session Laws 2026-38, s. 13(d), effective December 1, 2026, and applicable to any initial or supplemental capacity hearing conducted on or after that date.

(c) Repealed by Session Laws 2026-38, s. 13(d), effective December 1, 2026, and applicable to any initial or supplemental capacity hearing conducted on or after that date.

(d) When the court finds, pursuant to G.S. 15A-1002, that a defendant is incapable to proceed to trial and that the defendant is reasonably likely to gain capacity to proceed within the foreseeable future, the court shall order the defendant to enroll and participate in a capacity restoration program, as defined in G.S. 122C-256, subject to the following conditions:

(1) If the defendant is eligible for pretrial release, enrollment and participation in a community-based capacity restoration program shall be imposed as an additional condition of release, so long as such program is reasonably available based on geographic location, program capacity, and any other relevant factor. Additional conditions may be imposed in the court's discretion pursuant to Article 26 of this Chapter, specifically including the power to place the defendant in the custody of a designated person or organization agreeing to supervise the defendant.

(2) If the defendant is held in pretrial custody, the defendant shall be required to enroll and participate in a detention center capacity restoration program, as defined in G.S. 122C-256, if such program is reasonably available.

(3) If the court determines that the most clinically appropriate setting for a defendant to receive capacity restoration services is an inpatient setting other than through civil involuntary commitment, then the court may instead order the defendant to enroll in an inpatient-based capacity restoration program, if such program is reasonably available.

(4) The court shall specify in its order the duration of the defendant's enrollment, up to a maximum initial term of four months, taking into account the defendant's mental condition, the prognosis for the defendant's ability to gain capacity, the nature of the criminal charges, the nature of the capacity restoration program, and any other relevant factor. The term of a defendant's enrollment period does not include wait times for program entry. The initial term of four months may be extended per G.S. 15A-1007(e).

(5) The court shall issue any other orders deemed appropriate to safeguard the defendant and to protect the public, including orders to ensure and provide for the defendant's return for trial in the event the defendant subsequently gains capacity. The court may amend or supplement its orders from time to time as changed conditions require.

(e) If no capacity restoration program is reasonably available to the defendant, or if the court finds that the defendant is expected to gain capacity in the foreseeable future without the need for capacity restoration services, or for other good cause shown, the requirement for referral to such program may be waived, but the court shall issue any further orders as appropriate to safeguard the defendant and to protect the public, including orders to ensure and provide for the defendant's return for trial in the event the defendant subsequently gains capacity. The court may review and modify the defendant's conditions of release. The court may also determine when a supplemental hearing under G.S. 15A-1007 should be held.

(f) If the court finds that the defendant is not reasonably likely to gain capacity to proceed in the foreseeable future, the court shall not order the defendant to receive capacity restoration services but shall instead consider whether dismissal of the charges is required pursuant to G.S. 15A-1008. The court may further determine when a supplemental hearing under G.S. 15A-1007 should be held to review the defendant's condition. The court may review and modify the defendant's conditions of release as appropriate pending further determination pursuant to G.S. 15A-1008 or supplemental hearing.

(g) In addition to the requirement provided in subsection (b) of this section, the court at any time after the defendant is found incapable to proceed may determine whether there are reasonable grounds to believe the defendant probably has a mental illness and is either (i) dangerous to self or others as defined under G.S. 122C-3 or (ii) in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness and therefore meets the criteria for involuntary civil commitment. Based upon such findings, the court may issue a custody order in the same manner and with the same effect as an order issued by a clerk or magistrate pursuant to G.S. 122C-261. Proceedings thereafter are in accordance with Part 7 of Article 5 of Chapter 122C of the General Statutes and subject to the following requirements:

(1) Proceedings for involuntary commitment may be initiated on the basis of the report in either the county where the criminal proceedings are pending or, if the defendant is hospitalized, in the county in which the defendant is hospitalized.

(2) If the defendant was charged with a violent crime, including a crime involving assault with a deadly weapon, the custody order shall require a law enforcement officer to take the defendant directly to a 24-hour facility as described in G.S. 122C-252 as soon as space is available, and the order must indicate that the defendant was charged with a violent crime and that he or she was found incapable to proceed.

(3) The court may make appropriate orders for the temporary detention of the defendant pending the commitment proceedings.

(4) The court may set or modify conditions of pretrial release in the event that the defendant is not involuntarily committed, is discharged or released from involuntary commitment, or is involuntarily committed on an outpatient basis.

(5) Evidence used at the hearing with regard to capacity to proceed is admissible in the involuntary civil commitment proceedings.

(6) Pursuant to G.S. 143B-147, the treatment plan for any defendant involuntarily committed after a finding of incapacity to proceed under this Article shall incorporate methods designed in accordance with best practices to restore the defendant's capacity to proceed for so long as the defendant remains committed pursuant to Chapter 122C of the General Statutes, whether on an inpatient or outpatient basis. However, a defendant's lack of capacity to proceed, standing alone, does not constitute an independent basis for continued civil involuntary commitment.  (1973, c. 1286, s. 1; 1975, c. 166, s. 20; 1983, c. 380, s. 1; 1985, c. 589, s. 10; 1987, c. 596, s. 5; 2025-93, s. 7(a); 2026-38, s. 13(d).)