August 15, 2011 By Wallin & Klarich

After there has been a determination that a defendant is indeed incompetent, the court will:

order the defendant to be committed for treatment to restore competence and make an order regarding the defendant’s antipsychotic medication.

Under Penal Code §1370(c)(1), the maximum time for a defendant to be committed for a felony is the shorter of the two:

– 3 years from the date of commitment or
– the maximum term of imprisonment.

The first thing the judge will do in the case of an incompetent defendant is to order a community program director to evaluate the defendant in order to determine what type of treatment/commitment is needed. Acting under Penal Code §1370(a)(2)(A) the director will make a determination whether the defendant needs to undergo outpatient treatment, be committed to a state hospital, or to any other treatment facility. Subsequently, the court will order a delivery of the defendant to the recommended facility.

After the court has dealt with the treatment facility, a determination must then be made concerning the defendant’s medication. Of course, the defendant can either consent or refuse the prescribed medication.

In the case where the defendant initially does not consent, the court must conduct a hearing as to whether medication should be administered involuntarily. The court can order that medication be administered over the D’s objection if:

Defendant lacks the capacity to decide whether taking medication is in his best interest,
poses a danger to himself or others, or as a last resort,
the medication is necessary to restore D to competence o Penal Code §1370(a)(2)(B)(ii)(III) Requirements:

Defendant is charged with a serious crime Involuntary administration of anti-psychotic medication is substantially likely to render the D competent to stand trial The medication is unlikely to have side effects that interfere with the D’s ability to understand the nature of the criminal proceeding or to assist counsel in the conduct of a defense in a reasonable manner Less intrusive treatments are unlikely to have substantially the same results, and Anti-psychotic medication is in the patient’s best medical interest in light of his or her medical condition We hope this gives you some insight on what happens after the court determines a defendant to be incompetent. If you or a loved one needs help with a criminal case that may have an issue of competence to stand trial or any other type of criminal defense matter, you need an attorney immediately. Wallin & Klarich has a team of highly skilled and aggressive criminal defense attorneys ready to take your call. Wallin & Klarich has over 30 years of experience defending against criminal prosecution and achieving the best possible results. Call us today at 888-749-0034 or visit us online at We will be there for you when you call.

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