# Title 12.1 — Criminal Code

## Chapter 12.1-04 — Juveniles - Intoxication - Fitness to Proceed

### § 12.1-04-01. Juveniles.

The prosecution of an individual as an adult is barred if the offense was committed while the
individual was less than fourteen years of age.
### § 12.1-04-02. Intoxication.

1. Intoxication is not a defense to a criminal charge. Intoxication does not, in itself,
constitute mental disease or defect within the meaning of section 12.1-04-04.
Evidence of intoxication is admissible whenever it is relevant to negate or to establish
an element of the offense charged.
2. A person is reckless with respect to an element of an offense even though his
disregard thereof is not conscious, if his not being conscious thereof is due to
self-induced intoxication.
### § 12.1-04-03. Lack of criminal responsibility a defense.

Repealed by S.L. 1985, ch. 173, § 29.
### § 12.1-04-04. Definitions.

As used in this chapter, unless the context otherwise requires:
1. "Fitness to proceed" means sufficient present ability to consult with the individual's
counsel with a reasonable degree of rational understanding and a rational as well as
factual understanding of the proceedings against the individual.
2. "Least restrictive appropriate setting" means available treatment or service that best
meets the identified need and is no more restrictive of physical or social liberties than
what is necessary to meet the need.
3. "Therapeutically appropriate treatment" means treatment that provides the individual
the greatest probability of improvement or cure.
### § 12.1-04-04.1. Disposition of defendants - Lack of fitness to proceed - Records.

1. A defendant is presumed to be fit to stand trial, to plead, or to be sentenced.
2. An individual who lacks fitness to proceed may not be tried, convicted, or sentenced
for the commission of an offense.
3. Any report filed pursuant to this chapter regarding "diagnosis, treatment, or treatment
plans" must be kept confidential and may be reviewed only by the court or an appellate
court, the state, the defense, the facility providing treatment as required by order of the
court, and any other person as directed by the court.
### § 12.1-04-05. Notice of defense, filing.

Superseded by N.D.R.Crim.P., Rule 12.2.
### § 12.1-04-06. Temporary detention for purposes of examination.

Whenever there is reason to doubt the defendant's fitness to proceed, the court may order
temporary detention of the defendant for the purpose of an examination. The temporary
detention must be in the least restrictive appropriate setting, including the state hospital, the life
skills and transition center, or other suitable facility for a reasonable period, not to exceed thirty
days, for such examination. In lieu of detention, the court may allow the defendant to remain in
the defendant's present residential setting or other suitable residential setting for the purpose of
examination, subject to any reasonable limitation the court may impose. A state-operated
behavioral health clinic may be considered if the court is aware an inquiry was made before the
court ordered the evaluation to ensure appropriate resources exist at the state-operated
behavioral health clinic being ordered to conduct the examination. While the defendant is
detained, the defendant's legal counsel, family, and others necessary to assist in the
defendant's case must have reasonable opportunity to examine and confer with the defendant.

### § 12.1-04-07. Examination - Report - Hearing when contested.

1. Whenever there is reason to doubt the defendant's fitness to proceed, the court shall
order the defendant be examined by a tier 1a mental health professional.
2. An examination must occur within fifteen days from receipt of material necessary to
examine the fitness of the individual and notice of entry of the order served upon the
tier 1a mental health professional. Attorneys shall disclose any materials necessary to
examine the fitness of the individual to the tier 1a examiner contemporaneously with
the order. For good cause shown, the court may grant an extension allowing an
additional seven days to complete the examination.
3. The report of the examining mental health professional, whether for a retrospective
evaluation of fitness or an evaluation of the defendant's current fitness, must be
provided to the court in writing within thirty days of the date of the examination.
4. The report must include:
a. The identity of the individuals interviewed and records and other information
considered.
b. Procedures, tests, and techniques utilized in the assessment.
c. The date and time of the examination of the defendant, and the identity of each
individual present during the examination.
d. The relevant information obtained, other information not obtained, and the
defendant's responses to questions related to the defendant's fitness to proceed,
except for any restricted, proprietary, copyrighted, or other information subject to
trade secret protection which the examiner believes may be relevant, and the
findings made.
e. An opinion as to whether the defendant is fit to proceed, is able to understand the
nature or purpose of the proceedings against the defendant, is able to effectively
communicate with counsel, and whether the defendant will attain fitness to
proceed within the time frames set forth in section 12.1-04-08. If the examiner is
unable to determine whether the defendant will attain fitness within a specified
period of time, the report must include the reasoning. The report may include a
general description of the type of treatment needed and of the therapeutically
appropriate treatment or other appropriate treatment.
5. If the findings of the report are contested, the court shall hold a hearing before
deciding whether the defendant currently lacks fitness to proceed and whether the
defendant will attain fitness to proceed. Upon hearing, the prosecution and defense
have the right to summon and cross-examine the persons responsible for the report
and to offer evidence upon the issues.
### § 12.1-04-08. Suspension or dismissal of proceedings - Referral for services.

1. If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed and the defendant is charged with a
class B misdemeanor, except a class B misdemeanor under chapter 12.1-17, the
proceedings must be dismissed.
2. If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed, the defendant is charged with a felony or
a class A misdemeanor, and the report as required under section 12.1-04-07 indicates
a likelihood the defendant will attain fitness within a specified period of time from the
date of the finding upon completion of a course of therapeutically appropriate
treatment, the proceedings against the defendant must be suspended for a period of
up to one hundred eighty days. The court may extend the suspension for an additional
three hundred sixty-five days if there is medical evidence to believe the defendant's
fitness to proceed will be restored during the extended period. For a defendant
charged with a class B misdemeanor under chapter 12.1-17, the proceedings must be
suspended for a period no longer than the maximum term of imprisonment for the
most serious offense charged. When the court determines, after a hearing if a hearing
is requested, that the defendant has regained fitness to proceed, the proceeding must
be resumed. If prosecution of the defendant has not resumed or it is determined by the

court, after a hearing if a hearing is requested, that the defendant will not regain fitness
to proceed within the allotted time, the charges against the defendant must be
dismissed.
3. If the court determines based upon a preponderance of the evidence that the
defendant currently lacks fitness to proceed and that the defendant will not attain
fitness to proceed, the proceedings must be dismissed. The court may at any time
make a referral for other appropriate services. Other appropriate services include:
a. Determination of incapacity, by a district court with appropriate jurisdiction
following petition by the state's attorney, for the appointment of a guardian or
conservator pursuant to chapter 30.1-28 or 30.1-29;
b. Civil commitment of the person pursuant to chapter 25-03.1; or
c. Any other services the court deems appropriate.
4. If the court determines the defendant currently lacks fitness to proceed and the
defendant may attain fitness to proceed under subsection 2, the court may enter an
order for a course of treatment considering the least restrictive form of treatment
therapeutically appropriate.
a. Unless excused by the court, in a proceeding to determine therapy in an attempt
to attain fitness, the defendant shall be represented by trial counsel.
b. If the court finds the individual is not able to retain the services of a tier 1a mental
health professional and that those services are not otherwise available, the court
shall authorize reasonable expenditures from public funds to examine the
individual.
c. In a motion hearing to resume prosecution, the state or prosecuting authority
must show by a preponderance of the evidence the defendant has attained
fitness to proceed.
5. If the court orders the defendant committed to a treatment facility in an attempt to
attain fitness to proceed under subsection 2, the court shall provide the special
custody and commitment terms in the order. The special terms of commitment must
include an order for the defendant to accept all nonexperimental, generally accepted
medical, psychiatric, or psychological treatment recommended by the treatment facility,
including the use of involuntary treatment with prescribed medication without the need
for a separate commitment under chapter 25-03.1.
a. If the order does not indicate the terms of commitment, the director or
superintendent of the treatment facility may determine the nature of the
constraints necessary within the treatment facility to carry out the order of the
court.
b. If the court orders an individual committed for therapeutic treatment to attain
fitness to proceed, the court shall set a date consistent with the timeline
established in this section for a review of the defendant's fitness to proceed. At
least sixty days before the date specified for review, the director or director's
designee or the superintendent of the treatment facility shall inquire as to whether
the individual is represented by counsel and file a written report of the facts
ascertained with the court.
6. If the parties to the action have reason to modify the special terms of the commitment
order under this section, the parties shall make a motion to the court and the court
shall determine by a preponderance of the evidence if the modification of the special
terms is necessary and the least restrictive therapeutic alternative therapy in an
attempt to attain fitness to proceed.
7. The custodian, guardian, or other person charged with the control of the defendant
may take an appeal from the court's order in the manner provided by law.
### § 12.1-04-09. Legal objections to prosecution allowed.

The fact that the defendant is unfit to proceed does not preclude any legal objection to the
prosecution which is susceptible of fair determination prior to trial and without the personal
participation of the defendant.

### § 12.1-04-10. Acquittal due to mental disease or defect - Petition to clerk of court.

Repealed by S.L. 1985, ch. 173, § 29.
