Competency to Proceed

C.R.S. tit. 16, art. 8.5
in effect

C.R.S. § 16-8.5-101 Definitions

16-8.5-101. Definitions. As used in this article 8.5, unless the context otherwise requires: (1) "Collateral materials" means the relevant police incident reports and the charging documents, either the criminal information or indictment. (2) "Competency evaluation" includes both court-ordered competency evaluations and second evaluations. (3) "Competency evaluator" means a licensed physician who is a psychiatrist or a licensed psychologist, each of whom is trained in forensic competency assessments, or a psychiatrist who is in forensic training and practicing under the supervision of a psychiatrist with expertise in forensic psychiatry, or a psychologist who is in forensic training and is practicing under the supervision of a licensed psychologist with expertise in forensic psychology. (4) "Competency hearing" means a hearing to determine whether a defendant is competent to proceed. (5) "Competent to proceed" means that the defendant does not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents the defendant from having a rational and factual understanding of the criminal proceedings. (6) "Court-ordered competency evaluation" means a court-ordered examination of a defendant either before, during, or after trial, directed to developing information relevant to a determination of the defendant's competency to proceed at a particular stage of the criminal proceeding, that is performed by a competency evaluator and includes evaluations concerning restoration to competency. (7) "Court-ordered report" means a report of an evaluation, conducted by or under the direction of the department, that is the statutory obligation of the department to prepare when requested to do so by the court. (8) "Criminal proceedings" means trial, sentencing, satisfaction of the sentence, execution, and any pretrial matter that is not susceptible of fair determination without the personal participation of the defendant. (9) "Department" means the department of human services. (10) "Developmental disability" means a disability that has manifested before the person reaches twenty-two years of age, constitutes a substantial disability to the affected individual, and is attributable to an intellectual disability or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with an intellectual disability. Unless otherwise specifically stated, the federal definition of "developmental disability", 42 U.S.C. sec. 15002 (8), shall not apply. (11) "Executive director" means the executive director of the department of human services. (12) "Incompetent to proceed" means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings. (13) "In-custody" means in prison, in a jail, or in any other locked detention facility that does not meet the definition of inpatient. (14) "Inpatient" means in the custody of the department, either in a hospital or in a full-time, jail-based restoration program developed by the department. disability, the defendant does not have a rational and factual understanding of the criminal proceedings. (13) "In-custody" means in prison, in a jail, or in any other locked detention facility that does not meet the definition of inpatient. (14) "Inpatient" means in the custody of the department, either in a hospital or in a full-time, jail-based restoration program developed by the department. (15) "Mental disability" means a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. "Mental disability" does not include acute intoxication from alcohol or other substances, or any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability. (16) "Outpatient" means a location outside of the custody of the department. "Outpatient" does not include a jail, prison, or other detention facility where the defendant is in-custody. (17) "Restoration hearing" means a hearing to determine whether a defendant who has previously been determined to be incompetent to proceed has become competent to proceed. (18) "Second evaluation" means an evaluation requested by the court, the district attorney, or the defendant that is performed by a competency evaluator and that is not performed by or under the direction of, or paid for by, the department. (19) "Tier 1" means a defendant: (a) Who has been ordered to receive inpatient restorative treatment; (b) For whom a competency evaluator has determined either that the defendant: (I) Appears to have a mental health disorder and, as a result of the mental health disorder, appears to be a danger to others or to himself or herself or appears to be gravely disabled; or (II) Has a mental health disorder; and (c) For whom, as a result of the determination made pursuant to subsection (19)(b) of this section, delaying inpatient hospitalization beyond seven days would cause harm to the defendant or others. (20) "Tier 2" means a defendant who has been ordered to receive inpatient restorative treatment and who does not meet the criteria to be a tier 1 defendant.

C.R.S. § 16-8.5-102 Competency to proceed - how and when raised

16-8.5-102. Competency to proceed - how and when raised. (1) While a defendant is incompetent to proceed, the defendant must not be tried or sentenced, nor shall the court consider or decide pretrial matters that are not susceptible of fair determination without the personal participation of the defendant. However, a determination that a defendant is incompetent to proceed does not preclude the furtherance of the proceedings by the court to consider and decide matters, including a preliminary hearing and motions, that are susceptible of fair determination prior to trial and without the personal participation of the defendant. Those proceedings may be later reopened if, in the discretion of the court, substantial new evidence is discovered after and as a result of the defendant's restoration to competency. (2) The question of a defendant's competency to proceed must be raised in only one of the following manners: (a) If the judge has reason to believe that the defendant is incompetent to proceed, the judge shall suspend the proceeding and determine the competency or incompetency of the defendant pursuant to section 16-8.5-103; (b) If either the defense or the prosecution has reason to believe that the defendant is incompetent to proceed, either party may file a motion in advance of the commencement of the particular proceeding. A motion to determine competency shall be in writing and contain a certificate of counsel stating that the motion is based on a good faith doubt that the defendant is competent to proceed. The motion must set forth the specific facts that have formed the basis for the motion. The court must seal the motion. If the motion is made by the prosecution, the prosecution shall provide the defense a copy of the motion. If the motion is made by the defense, the defense shall provide the prosecution notice of the filing of the motion at the time of filing, and if the defense requests a hearing, the defense shall provide the motion to the prosecution at the time the hearing is requested. The motion may be filed after the commencement of the proceeding if, for good cause shown, the defendant's mental disability or developmental disability was not known or apparent before the commencement of the proceeding. (c) Repealed. (d) By the public defender liaison, as described in section 21-1-104 (6), or an attorney representing the offender in a parole proceeding. (3) Notwithstanding any provision of this article 8.5 to the contrary, the question of whether a convicted person is mentally incompetent to be executed must be raised and determined pursuant to part 14 of article 1.3 of title 18. (4) If a defendant is eligible for referral to the bridges wraparound care program pursuant article 8.6 of this title 16, the court may ask the parties whether the defendant should be referred for participation in the program. With the agreement of the parties, the court may delay making determinations regarding the defendant's competency to allow a bridges wraparound care coordinator to conduct an initial intake of the defendant pursuant to section 16-8.6-108 to determine whether the bridges wraparound care program is appropriate for the defendant.

C.R.S. § 16-8.5-103 Determination of competency to proceed

16-8.5-103. Determination of competency to proceed. (1) (a) Whenever the question of a defendant's competency to proceed is raised, by either party or on the court's own motion, the court may make a preliminary finding of competency or incompetency to proceed, which is a final determination unless a party to the case objects within seven days after the court's preliminary finding. (b) On or before the date when a court orders that a defendant be evaluated for competency, a bridges court liaison for the district hired or contracted pursuant to article 95 of title 13 may be assigned to the defendant. (2) If either party objects to the court's preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department and that the department prepare a court-ordered report. (3) Within seven days after receipt of the court-ordered report, either party may request a hearing or a second evaluation. (4) If a party requests a second evaluation, any pending requests for a hearing must be continued until the receipt of the second evaluation report. The report of the expert conducting the second evaluation must be completed and filed with the court within thirty-five days after the court order allowing the second evaluation, unless the time period is extended by the court for good cause. If a second evaluation is completed and restoration is ultimately ordered, then the court shall make the second evaluation available to the department. If the second evaluation is requested by the court, it must be paid for by the court. (5) If neither party requests a hearing or a second evaluation within the applicable time frame, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed. (6) If a party makes a timely request for a hearing, the hearing shall be held within thirty-five days after the request for a hearing or, if applicable, within thirty-five days after the filing of the second evaluation report, unless the time is extended by the court after a finding of good cause. (7) At any hearing held pursuant to this section, the party asserting the incompetency of the defendant shall have the burden of submitting evidence and the burden of proof by a preponderance of the evidence. (8) If the question of the defendant's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty and the court determines that the defendant is incompetent to proceed or orders a court-ordered competency evaluation, the court may declare a mistrial. Declaration of a mistrial under these circumstances does not constitute jeopardy, nor does it prohibit the trial or sentencing of the defendant for the same offense after the defendant has been found restored to competency. (9) In all proceedings under this article 8.5, when competency has been raised by the parole board pursuant to section 16-8.5-102 (2)(d), the court shall pay for any evaluation to determine competency pursuant to this section, and the evaluation must be conducted at the place where the defendant is in custody.

C.R.S. § 16-8.5-104 Waiver of privilege

16-8.5-104. Waiver of privilege. (1) When a defendant raises the issue of competency to proceed, or when the court determines that the defendant is incompetent to proceed, any claim by the defendant to confidentiality or privilege is deemed waived in the case in which competency is raised and for records or information from any prior criminal case in which the defendant raised the issue of competency or in which the court determined that the defendant was incompetent to proceed. The district attorney, the defense attorney, the bridges court liaison, and the court are granted access, without written consent of the defendant or further order of the court, to: (a) Reports of competency evaluations, including second evaluations; (b) Information and documents relating to the competency evaluation that are created by, obtained by, reviewed by, or relied on by an evaluator performing a court-ordered evaluation; and (c) The evaluator, for the purpose of discussing the competency evaluation. (2) Upon a request by either party or the court for the information described in subsection (1) of this section, the evaluator or treatment provider shall provide the information for use in preparing for a hearing on competency or restoration and for use during such a hearing. (3) An evaluator or a facility providing competency evaluation or restoration treatment services pursuant to a court order issued pursuant to this article 8.5 shall provide procedural information to the court, bridges court liaison, district attorney, or defense counsel, concerning the defendant's location, the defendant's hospital or facility admission status, the status of evaluation procedures, and other procedural information relevant to the case. (4) Nothing in this section limits the court's ability to order that information in addition to the information described in subsections (1) and (3) of this section be provided to the evaluator, or to either party to the case, nor does it limit the information that is available after the written consent of the defendant. (4.5) The court may, upon the request of either party, issue an order to assist a party in accessing, receiving copies of, or discussing with an evaluator or treatment provider information or records that the party has the right to access pursuant to the defendant's waiver of privilege. If a party requests such an order, the court shall allow the opposing party to make any legal objection, including whether the requested information is within the scope of the defendant's waiver of privilege, and consider any requests for protective orders prior to issuing the court order. This section does not limit the court's ability to order information be provided to a party with the written consent of the defendant. (5) The court shall order both the prosecutor and the defendant or the defendant's counsel to exchange the names, addresses, reports, and statements of each physician or psychologist who has examined or treated the defendant for competency. (6) Statements made by the defendant in the course of any evaluation must be protected in accordance with section 16-8.5-108.

C.R.S. § 16-8.5-105 Evaluations, locations, time frames, and report

16-8.5-105. Evaluations, locations, time frames, and report. (1) (a) (I) The court shall order that the competency evaluation be conducted on an outpatient basis or, if the defendant is unable to post the monetary condition of bond or is ineligible to be released on bond, at the place where the defendant is in-custody, except as provided in subsection (1)(b) of this section. If the department conducts the evaluation on an in-custody basis, the department shall begin the evaluation as soon as practicable after the department's receipt of a court order directing the evaluation. If the evaluation is conducted on an in-custody basis, the department shall complete the evaluation no later than twenty-one days after receipt of the order and the collateral materials. If the evaluation is conducted on an out-of-custody basis, the department shall complete the evaluation within forty-two days after receipt of the order and collateral materials, unless the court extends the time upon a showing of good cause. (II) At the time any evaluation is ordered, the court shall order that the collateral materials be transmitted to the department within twenty-four hours after the order by the appropriate party with a certificate of service of the materials provided to the court and other necessary parties by the party ordered to transmit the collateral materials. (III) The court shall determine the type of bond and the conditions of release after consideration of the presumptions and factors enumerated in article 4 of this title 16, which include consideration of the information received from any pretrial services program pursuant to section 16-4-106 and any information provided by the bridges court liaison hired or contracted pursuant to article 95 of title 13. As a condition of any bond, the court shall require the defendant's cooperation with the competency evaluation on an outpatient and out-of-custody basis. In setting the bond, the court shall not consider the need for the defendant to receive an evaluation pursuant to this article 8.5 as a factor in determining any monetary condition of bond. (IV) Nothing in this subsection (1)(a) limits the availability of a court-ordered evaluation for a person with a mental health disorder or invokes the procedure for an emergency mental health hold set forth in section 27-65-106. (b) Notwithstanding the provisions of subsection (1)(a) of this section, the court may order the defendant placed in the department's custody for the time necessary to conduct the inpatient competency evaluation if: (I) The department provides a recommendation to the court, after consultation with the defendant and review of any clinical or collateral materials, that conducting the competency evaluation on an inpatient basis is clinically appropriate; (II) The court finds that the competency evaluation and report provided by the department is insufficient because it does not meet statutory requirements pursuant to subsection (5) of this section or that two or more conflicting competency evaluations and reports have been completed; or (III) Extraordinary circumstances relating to the case or the defendant make conducting the competency evaluation on an inpatient basis necessary and appropriate. (IV) and (V) (Deleted by amendment, L. 2019.) (b.3) Upon entry of a court order pursuant to subsection (1)(b) of this section, the department has the same authority with respect to custody as provided for in section 16-8-105.5 (4). (b.5) When the court orders an inpatient evaluation, the court shall advise the defendant that restoration services may commence immediately if the evaluation concludes that the defendant is incompetent to proceed, unless either party objects at the time of the advisement, or within seventy-two hours after the receipt of the written evaluation submitted to the court. The court shall record any objection to the order of commitment to the department. the court shall advise the defendant that restoration services may commence immediately if the evaluation concludes that the defendant is incompetent to proceed, unless either party objects at the time of the advisement, or within seventy-two hours after the receipt of the written evaluation submitted to the court. The court shall record any objection to the order of commitment to the department. (b.6) If the evaluator concludes that the defendant is incompetent to proceed and that inpatient restoration services are not clinically appropriate, the department shall detail the outpatient and out-of-custody restoration services available to the defendant. (b.7) When the court orders an inpatient evaluation, the defendant must be offered admission to the hospital or other inpatient program within fourteen days after receipt of the court order and collateral materials. The court shall review the case in twenty-one days to determine if transportation to the hospital or program has been completed or if further orders are necessary. (c) (Deleted by amendment, L. 2019.) (d) If a defendant is in the department's custody for purposes of the competency evaluation ordered pursuant to this article 8.5 and the defendant has completed the competency evaluation and the evaluator has concluded that the defendant is competent to proceed, the department may return the defendant to a county jail or to the community, as determined by the defendant's bond status. If the evaluator has concluded that the defendant is incompetent to proceed and that inpatient restoration services are not clinically appropriate, and outpatient restoration services are available to the defendant in the community, the department shall notify the court and the bridges court liaison, and the department shall develop a discharge plan and a plan for community-based restoration services in coordination with the community restoration services provider. The court shall hold a hearing within seven days after receiving the notice, at which the department shall provide to the court the plan for community-based restoration services, and the court may enter any appropriate orders regarding the custody of the defendant and the defendant's bond status. The department shall advise the defendant of the date and time of the court hearing. If the department is returning the defendant to a county jail, the county sheriff in the jurisdiction where the defendant must return shall take custody of the defendant within seventy-two hours after receiving notification from the department that the defendant's evaluation is completed. At the time the department notifies the sheriff, the department shall also notify the court and the bridges court liaison that the department is returning the defendant to the custody of the jail. he jurisdiction where the defendant must return shall take custody of the defendant within seventy-two hours after receiving notification from the department that the defendant's evaluation is completed. At the time the department notifies the sheriff, the department shall also notify the court and the bridges court liaison that the department is returning the defendant to the custody of the jail. (e) Nothing in this section restricts the right of the defendant to procure a competency evaluation as provided in section 16-8.5-106. (2) The defendant shall cooperate with the competency evaluator and with other personnel providing ancillary services, such as testing and radiological services. Statements made by the defendant in the course of the evaluation shall be protected as provided in section 16-8.5-108. If the defendant does not cooperate with the competency evaluator and other personnel providing ancillary services and the lack of cooperation is not the result of a developmental disability or a mental disability, the fact of the defendant's noncooperation with the competency evaluator and other personnel providing ancillary services may be admissible in the defendant's competency or restoration hearing to rebut any evidence introduced by the defendant with regard to the defendant's competency. (3) To aid in forming an opinion as to the competency of the defendant, it is permissible in the course of an evaluation under this section to use confessions and admissions of the defendant and any other evidence of the circumstances surrounding the commission of the offense, as well as the medical and social history of the defendant, in questioning the defendant. When the defendant is noncooperative with the competency evaluator or personnel providing ancillary services, an opinion of the competency of the defendant may be rendered by the competency evaluator based upon confessions, admissions, and any other evidence of the circumstances surrounding the commission of the offense, as well as the known medical and social history of the defendant, and the opinion may be admissible into evidence at the defendant's competency or restoration hearing. (4) A written report of the evaluation must be prepared and the department shall electronically deliver the report to the court clerk who ordered it. The clerk shall provide a copy of the report to the prosecuting attorney, the bridges court liaison, and the defense counsel using an e-filing system. Without reducing any other timelines set forth in this article 8.5, the competency evaluator shall provide the written report to the court within fourteen days after finishing meeting or attempting to meet with the defendant to evaluate the defendant's competency. (5) The competency evaluation and report must include, but need not be limited to: (a) The name of each physician, psychologist, or other expert who examined the defendant; (b) A description of the nature, content, extent, and results of the competency evaluation and any tests conducted, which must include but need not be limited to the information reviewed and relied upon in conducting the competency evaluation and specific tests conducted by the competency evaluator; (c) A diagnosis and prognosis of the defendant's mental disability or developmental disability; (d) An opinion as to whether the defendant currently suffers from a mental disability or developmental disability. If the opinion of the competency evaluator is that the defendant suffers from a mental disability or developmental disability, then the report must include an opinion as to the diagnosis and the prognosis of the defendant's mental disability or developmental disability. l disability; (d) An opinion as to whether the defendant currently suffers from a mental disability or developmental disability. If the opinion of the competency evaluator is that the defendant suffers from a mental disability or developmental disability, then the report must include an opinion as to the diagnosis and the prognosis of the defendant's mental disability or developmental disability. (e) An opinion as to whether the defendant is competent to proceed or incompetent to proceed. If the opinion of the competency evaluator is that the defendant is incompetent to proceed, then the report must include: (I) (A) An opinion as to whether there is a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future; and (B) If possible, when the defendant is diagnosed with a moderate to severe intellectual or developmental disability, acquired or traumatic brain injury, or dementia, which either alone or together with a co-occurring mental illness affects the defendant's ability to gain or maintain competency, the evaluator shall provide an opinion as to whether there is a substantial probability that the defendant with restoration services will attain competency within the reasonably foreseeable future. When the opinion is that there is a substantial probability of attaining competency, the evaluator shall specifically state whether the evaluator believes there are unique or different services outside the standard competency restoration curriculum developed by the department that the defendant may need in order to be restored to competency within the reasonably foreseeable future. (II) An opinion as to whether inpatient restoration services are clinically appropriate to restore the defendant to competency. (f) An opinion as to whether there is a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future, and: (I) If any court within the previous five years found the defendant incompetent to proceed and that the defendant would not attain competency within the reasonably foreseeable future, an opinion as to why the defendant's current circumstances are different from the prior court's findings; and (II) If the defendant has been found incompetent to proceed after being found competent to proceed three or more times within the previous five years, an opinion as to whether, even if restored, the defendant will maintain competency throughout the current case. (g) The competency evaluator's opinion as to whether the defendant meets the criteria for a tier I or tier II designation, as defined in section 16-8.5-101 (19) and (20); and (h) The competency evaluator's opinion and the information and factors considered in making determinations as to whether the defendant: (I) Meets the criteria for an emergency mental health hold pursuant to section 27-65-106; ) The competency evaluator's opinion as to whether the defendant meets the criteria for a tier I or tier II designation, as defined in section 16-8.5-101 (19) and (20); and (h) The competency evaluator's opinion and the information and factors considered in making determinations as to whether the defendant: (I) Meets the criteria for an emergency mental health hold pursuant to section 27-65-106; (II) Meets the criteria for a certification for short-term treatment pursuant to section 27-65-108.5 or 27-65-109 and, if the defendant meets such criteria, whether the evaluator believes the defendant could be treated on an outpatient basis pursuant to section 27-65-111. In assessing whether the defendant with a pending criminal charge is a danger to self or others or is gravely disabled, if the person is incarcerated, the competency evaluator or professional person, as defined in section 27-65-102, and the court shall not rely on the fact that the defendant is incarcerated or is an inpatient in a medical facility to establish that the defendant is not a danger to self or others or is not gravely disabled. If it is the evaluator's opinion that the defendant meets criteria for certification for short-term treatment pursuant to section 27-65-108.5 or 27-65-109, the evaluator is not required to request a petition for certification for short-term treatment of the defendant in a court with jurisdiction pursuant to section 16-8.5-111 (3). (III) Has an intellectual and developmental disability, as defined in section 25.5-10-202, and if the defendant does have such a disability, whether the defendant may be eligible for any additional services pursuant to article 10 of title 25.5 or article 10.5 of title 27. (6) Whenever a competency evaluation is ordered upon the request of either party, the court may notify the county attorney or district attorney required to conduct proceedings pursuant to section 27-65-113 (6) for the county in which the charges are pending and the bridges court liaison hired or contracted pursuant to article 95 of title 13 of all court dates for return of the report on competency to ensure that all parties are on notice of the expected need for coordinated services and planning with consideration of possible civil certification. (7) Each court shall allow for any competency evaluation conducted pursuant to the provisions of this section or section 16-8.5-106 to be submitted to the court through electronic means. (8) A competency evaluator is not liable for damages in any civil action for failure to warn or protect a specific person or persons, including those identifiable by their association with a specific location or entity, against the violent behavior of a defendant being evaluated by the competency evaluator, and any competency evaluator must not be held civilly liable for failure to predict such violent behavior, except where the defendant has communicated to the competency evaluator a serious threat of imminent physical violence against a specific person or persons, including those identifiable by their association with a specific location or entity.

C.R.S. § 16-8.5-106 Evaluation at request of defendant

16-8.5-106. Evaluation at request of defendant. (1) If a defendant wishes to be examined by a competency evaluator of his or her own choice in connection with any proceeding under this article, the court, upon timely motion, shall order that the competency evaluator chosen by the defendant be given reasonable opportunity to conduct the second evaluation, in accordance with sections 16-8.5-103 and 16-8.5-111. (2) A copy of the second evaluation shall be furnished to the prosecution in a reasonable amount of time in advance of the competency or restoration hearing.

C.R.S. § 16-8.5-107 Counsel and evaluators for indigent defendants

16-8.5-107. Counsel and evaluators for indigent defendants. In all proceedings brought pursuant to this article 8.5, the court shall appoint a competency evaluator or an attorney for the defendant at the state's expense upon motion of the defendant with proof that the defendant is indigent and without money to employ a competency evaluator or attorney to which the defendant is entitled pursuant to this article 8.5. The court shall pay for a second evaluation if a second evaluation is requested by an indigent defendant.

C.R.S. § 16-8.5-108 Evidence

16-8.5-108. Evidence. (1) (a) Except as otherwise provided in this subsection (1), evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a competency evaluation or involuntary medication proceeding is not admissible against the defendant on the issues raised by a plea of not guilty, or, if the offense occurred before July 1, 1995, a plea of not guilty by reason of impaired mental condition. Such evidence may be admissible at trial to rebut evidence introduced by the defendant of the defendant's mental condition to show incapacity of the defendant to form a culpable mental state; and, in such case, the evidence may only be considered by the trier of fact as bearing upon the question of capacity to form a culpable mental state, and the jury shall be so instructed at the request of either party. (b) Evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a competency evaluation or involuntary medication proceeding is admissible at any sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102 only to prove the existence or absence of any mitigating factor. (c) If the defendant testifies on the defendant's own behalf upon the trial of the issues raised by the plea of not guilty or, for offenses that occurred before July 1, 1995, a plea of not guilty by reason of impaired mental condition, or at a sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102, this section does not bar any evidence used to impeach or rebut the defendant's testimony. (2) In any hearing concerning competency to proceed or restoration to competency, competency evaluators and other experts may testify as to the conclusions reached from their examination of hospital records, laboratory reports, X rays, electroencephalograms, and psychological test results if the material that the evaluators or experts examined in reaching their conclusions is produced at the time of the hearing. Nothing in this section prevents the parties from obtaining the information authorized by section 16-8.5-104 prior to the hearing.

C.R.S. § 16-8.5-109 Advisement on matters to be determined

16-8.5-109. Advisement on matters to be determined. (1) When a determination is to be made as to a defendant's competency to proceed, the court shall explain to the defendant the nature and consequences of the proceeding and the rights of the defendant under this section. The defendant, if the defendant wishes to contest the question, may request a competency hearing that the court shall grant as a matter of right. (2) At a competency hearing, the defendant and the prosecuting attorney are entitled: (a) To be present in person; (b) To examine any reports of the competency evaluation or other matter to be considered by the court as bearing upon the determination; (c) To introduce evidence, summon witnesses, cross-examine opposing witnesses or witnesses called by the court; and (d) To make opening and closing statements and arguments. (3) The court may examine or cross-examine any witness called by the defendant or prosecuting attorney at a competency hearing and may summon and examine witnesses on the court's own motion.

C.R.S. § 16-8.5-110 Testimony of lay witnesses

16-8.5-110. Testimony of lay witnesses. In any hearing at which the competency of the defendant is an issue, witnesses not specially trained in psychiatry or psychology and not testifying as expert witnesses may testify as to the witness's observation of the defendant's actions and conduct and as to conversations that the witness had with the defendant bearing upon the defendant's mental condition. Any such witnesses, as part of the witness's testimony, must be permitted to give opinions or conclusions concerning the competency of the defendant.

C.R.S. § 16-8.5-111 Procedure after determination of competency or incompetency

16-8.5-111. Procedure after determination of competency or incompetency. (1) Competent to proceed. If the final determination made pursuant to section 16-8.5-103 is that the defendant is competent to proceed, the judge shall order that the suspended proceeding continue or, if a mistrial was declared, shall reset the case for trial at the earliest possible date. (1.5) Referral to wraparound care program. If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and the defendant is eligible for referral to the bridges wraparound care program pursuant to article 8.6 of this title 16, the court may ask the parties whether the defendant should be referred for participation in the program. With the agreement of the parties, the court may delay ordering restoration services for the defendant to allow a bridges wraparound care coordinator to conduct an initial intake of the defendant pursuant to section 16-8.6-108 to determine whether the bridges wraparound care program is appropriate for the defendant, or the court may order restoration services pursuant to subsection (2) of this section. (1.6) Mandatory dismissal. (a) If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and if a defendant's highest charged offense is a class 2 misdemeanor, a petty offense, a drug misdemeanor, or a traffic offense, the court shall dismiss the charges against the defendant unless the district attorney objects prior to the entry of the order to dismiss and makes a prima facie showing that the defendant is a danger to the defendant's self or others or is gravely disabled and there is a reasonable belief that the defendant will be certified for treatment and receive the necessary services pursuant to article 65 of title 27. (b) If the district attorney makes the prima facie showing pursuant to subsection (1.6)(a) of this section, the court shall proceed pursuant to subsection (3) of this section or section 16-8.5-116.5 (7) and, upon completion of the certification process, the court shall dismiss the charges against the defendant. (c) If the court does not refer the defendant for certification pursuant to subsection (3) of this section or section 16-8.5-116.5 (7), the court may refer the defendant to voluntarily participate and receive services in the court liaison program pursuant to article 95 of title 13. (2) Restoration services ordered. If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and the court finds there is substantial probability that the defendant, with restoration services, will attain competency in the reasonably foreseeable future, the court has the following requirements and options: am pursuant to article 95 of title 13. (2) Restoration services ordered. If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and the court finds there is substantial probability that the defendant, with restoration services, will attain competency in the reasonably foreseeable future, the court has the following requirements and options: (a) If the defendant is out of custody or will be released soon, the court shall order the restoration services take place on an outpatient basis unless the recommendation from the department is that inpatient restoration services are clinically appropriate and: (I) The court shall order that the defendant participate in restoration services as a condition of any bond; (II) The court may appoint a bridges court liaison or may order that the defendant cooperate with pretrial services, if available, and the court may order pretrial services or a bridges court liaison, or both, to work with the defendant, the department, and the restoration services provider under contract with the department to assist in securing appropriate support and care management services for the defendant, which may include housing resources; and (III) The court shall conduct a nonappearance review fourteen days after the defendant's release from custody to ensure the defendant has been released. If the defendant is not released by the date of the nonappearance review, the court shall set a hearing to determine whether the defendant will be released or to enter an order pursuant to subsection (2)(c) of this section. (b) If the court determines the defendant is incompetent to proceed and is in custody on a misdemeanor, petty offense, or traffic offense, the court shall set a hearing on bond within seven days after the court's final determination that the defendant is incompetent to proceed. At the bond hearing, there is a presumption that the court shall order a personal recognizance bond and enter an order for restoration services pursuant to subsection (2)(a) of this section. In order to deny the defendant a personal recognizance bond and enter an order to commit the defendant for inpatient restoration services pursuant to subsection (2)(c) of this section, the court shall make findings of fact that extraordinary circumstances exist to overcome the presumption of release by clear and convincing evidence. If the court denies a personal recognizance bond, the court shall notify the department of the specific findings the court made to deny the personal recognizance bond. (c) If the court finds that the defendant is not eligible for release from custody or not able to post the monetary condition of bond, or the court approves a recommendation from the department that inpatient restoration services are clinically appropriate, the court shall commit the defendant to the custody of the department and order inpatient restoration services. e personal recognizance bond. (c) If the court finds that the defendant is not eligible for release from custody or not able to post the monetary condition of bond, or the court approves a recommendation from the department that inpatient restoration services are clinically appropriate, the court shall commit the defendant to the custody of the department and order inpatient restoration services. (3) Certification for short-term treatment. (a) (I) If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed, regardless of whether the court finds that there is a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future, the district attorney; a professional person, as defined in section 27-65-102; a representative of the behavioral health administration in the department; or a representative of the office of civil and forensic mental health may request to initiate a petition for certification for short-term treatment of the defendant in a court with jurisdiction. (II) The court shall hear and consider any objections from the defendant prior to ordering the requesting party to initiate a petition for certification for short-term treatment pursuant to subsection (3)(a)(I) of this section. (III) The court may order initiation of certification for short-term treatment only: (A) If the court finds reasonable grounds to believe that the defendant meets the standard for a certification for short-term treatment pursuant to section 27-65-108.5 or 27-65-109; and (B) If the defendant's highest charged offense is a petty offense, traffic offense, or misdemeanor offense, or with the agreement of the prosecuting attorney, regardless of the severity of the charge. (b) If the court requires the requesting party to initiate certification for short-term treatment pursuant to subsection (3)(a) of this section: (I) The prosecuting attorney and the department shall transmit any necessary information, including medical records, competency evaluations, materials used in the competency process, and restoration records, to the requesting party and shall cooperate with the requesting party in filing a petition for certification for short-term treatment pursuant to section 27-65-108.5 or 27-65-109; (II) The requesting party shall file a notice in the criminal case when the petition for certification for short-term treatment is filed pursuant to section 27-65-108.5 or 27-65-109; (III) The behavioral health administration in the department shall, directly or through a contract, provide care coordination services pursuant to section 27-65-108 after the certification for short-term treatment is filed pursuant to section 27-65-108.5 or 27-65-109; and (IV) The court may, upon the court's own motion, forgo an order for restoration services and dismiss the charges against the defendant without prejudice when the certification for short-term treatment is initiated if the highest charged offense is a petty offense, traffic offense, or misdemeanor offense; or cation for short-term treatment is filed pursuant to section 27-65-108.5 or 27-65-109; and (IV) The court may, upon the court's own motion, forgo an order for restoration services and dismiss the charges against the defendant without prejudice when the certification for short-term treatment is initiated if the highest charged offense is a petty offense, traffic offense, or misdemeanor offense; or (V) The court may, with the agreement of the prosecuting attorney and defendant, stay the restoration order to allow certification for short-term treatment proceedings to occur and to allow the district attorney to consider whether dismissal of the case is appropriate. In determining whether dismissal is appropriate while the criminal matter is pending, the defendant, the defendant's attorney in the criminal matter, and the prosecuting attorney in the criminal matter have access to limited information about any civil proceedings against the defendant pursuant to sections 27-65-108.5, 27-65-109, 27-65-110, and 27-65-111. Any information obtained must be kept confidential unless disclosure is otherwise authorized by law. The court shall not extend the defendant's criminal case past the time limits set forth in section 16-8.5-116.5. The limited information that the defendant, defendant's attorney, and prosecuting attorney may access includes: (A) Whether civil proceedings are pending or ongoing; (B) Whether the defendant is subject to certification for short-term or long-term treatment and whether the defendant is being treated in an inpatient or outpatient setting; (C) The date and time of the proceedings, even if the proceedings are confidential or closed to the prosecuting attorney or the defendant's criminal attorney; and (D) The final disposition of the proceeding. (4) Restoration hearing. (a) If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and the evaluator opines at any time that there is not a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future, the court shall set a hearing within the time frame set forth in section 16-8.5-113 (5). If the court receives the evaluator's opinion pursuant to this subsection (4) prior to entering a restoration order, the court shall set the hearing in lieu of ordering restoration treatment. (b) If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and the evaluator opines, pursuant to section 16-8.5-105 (5)(e)(I)(B), or another qualified expert opines that the defendant's diagnosis likely includes a moderate to severe intellectual or developmental disability, acquired traumatic brain injury, or dementia, which either alone or together with a co-occurring mental illness affects the defendant's ability to gain or maintain competency, the court shall set a hearing within the time frame set forth in section 16-8.5-113 (5) on the issue of whether there is a substantial probability that the defendant will be restored to competency in the reasonably foreseeable future. If the court receives the evaluator's opinion pursuant to this subsection (4) prior to entering a restoration order, the court shall set a hearing in lieu of ordering restoration treatment. aring within the time frame set forth in section 16-8.5-113 (5) on the issue of whether there is a substantial probability that the defendant will be restored to competency in the reasonably foreseeable future. If the court receives the evaluator's opinion pursuant to this subsection (4) prior to entering a restoration order, the court shall set a hearing in lieu of ordering restoration treatment. (c) At any hearing conducted pursuant to subsection (4)(a) or (4)(b) of this section: (I) An admitted report or testimony from a qualified expert opining that the defendant is incompetent to proceed and that there is not a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future is prima facie evidence that creates a presumption of fact. An admitted report or testimony from a qualified expert who opines that the defendant's diagnosis likely includes a neurocognitive or neurodevelopmental impairment that either alone or together with a co-occurring mental illness affects the defendant's ability to gain or maintain competency, is prima facie evidence of and creates a presumption that the defendant is incompetent to proceed and there is not a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future. (II) If the court has not yet ordered restoration services and restoration services have not been provided, a party attempting to overcome the presumption must prove by a preponderance of the evidence that there is a viable restoration treatment that will restore the defendant to competency and a substantial probability that restoration efforts will be successful within the reasonably foreseeable future; (III) If the defendant's diagnosis includes a neurocognitive or neurodevelopmental impairment, whether or not co-occuring with a mental illness that substantially affects the defendant's ability to gain or maintain competency, the party attempting to overcome the presumption must show by clear and convincing evidence that there is a viable restoration treatment that is substantially likely to restore the defendant to competency in the reasonably foreseeable future; and (IV) If the court has ordered restoration services and the court finds recent restoration services have been attempted and the defendant was not restored to competency, a party attempting to overcome the presumption must prove by clear and convincing evidence that the defendant, with continued restoration services, will attain competency in the reasonably foreseeable future and that the defendant can maintain competency through the adjudication of the case. (d) At the conclusion of any hearing set pursuant to subsection (4)(a) or (4)(b) of this section: (I) If the court does not find that the party asserting that there is a substantial probability that the defendant, with restoration services, will attain competency in the reasonably foreseeable future has overcome the presumption, the court shall dismiss the case pursuant to section 16-8.5-116.5 (1)(a); except that the court may stay the dismissal, if appropriate, as provided in section 16-8.5-116.5 (7); and (II) If the court finds that the party asserting that there is a substantial probability that the defendant, with restoration services, will attain competency in the reasonably foreseeable future has overcome the presumption, the court shall order appropriate restoration services and set a review. that the court may stay the dismissal, if appropriate, as provided in section 16-8.5-116.5 (7); and (II) If the court finds that the party asserting that there is a substantial probability that the defendant, with restoration services, will attain competency in the reasonably foreseeable future has overcome the presumption, the court shall order appropriate restoration services and set a review. (5) Dismissal of charges. To ensure compliance with relevant constitutional principles, if the court at any point determines that there is not a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future, the court shall, upon motion of the district attorney, the defendant, or on its own motion, dismiss the criminal proceedings pursuant to section 16-8.5-116.5 (1)(a). Subject to the provisions and presumptions of this section that may apply, a court shall not continue criminal proceedings against an incompetent defendant, except to stay a dismissal pursuant to section 16-8.5-116.5 (7), unless, after proper evaluation, the court finds it more likely than not that the defendant will be restored to competency in the reasonably foreseeable future. (6) Defendant's volitional lack of cooperation or unwillingness to participate - definition. (a) Nothing in this article 8.5 prohibits the court from finding that the defendant is restorable to competency in the reasonably foreseeable future based on the defendant's volitional lack of cooperation or unwillingness to participate in restoration services and treatment if the defendant could be restored to competency in the reasonably foreseeable future if the defendant cooperated and participated in the restoration services and treatment. (b) For the purposes of this subsection (6), "volitional lack of cooperation or unwillingness to participate" includes the defendant not attending restoration services or the defendant's refusal to take prescribed medications, especially when the defendant intends to avoid or delay the court case from proceeding. "Volitional lack of cooperation or unwillingness to participate" does not include acts that result from the bona fide medical or mental health disorder for which the defendant is incompetent or a defendant's attempt to raise a bona fide, good faith concern about medication side effects and risks. (7) Outpatient restoration services. If the defendant is out of custody and the court has ordered restoration services pursuant to subsection (2)(a) of this section: (a) Pursuant to section 27-60-105, the department is the entity responsible for the coordination of all competency restoration services, including the oversight of restoration education; (b) The restoration services provider under contract with the department shall notify the court, the department, the bridges court liaison, and any other designated agency within twenty-one days after the court's order if restoration services have not started and include a description of the efforts that have been made to engage the defendant in services; and e oversight of restoration education; (b) The restoration services provider under contract with the department shall notify the court, the department, the bridges court liaison, and any other designated agency within twenty-one days after the court's order if restoration services have not started and include a description of the efforts that have been made to engage the defendant in services; and (c) If the department determines that the department is unable, within a reasonable time, to provide restoration services on an outpatient basis, the department shall notify the court within fourteen days after the department's determination, at which point the court shall review the case and determine what interim mental health services the department or a community provider can provide to the defendant. If a bridges court liaison is appointed, the department shall report to the bridges court liaison every twenty-eight days concerning the availability of restoration services on an outpatient basis to the defendant. (8) Inpatient restoration services. (a) If the court commits the defendant to the custody of the department and orders inpatient restoration services: (I) The executive director shall designate a state facility or facilities where the defendant is held for care and psychiatric treatment and receives restoration services, and may transfer the defendant from one facility to another if, in the opinion of the director, doing so is in the best interest of proper care, custody, and treatment of the defendant or the protection of the public or the personnel of the facilities in question. The department shall provide restoration services at an appropriate inpatient program. The department shall notify the court, the bridges court liaison, the prosecuting attorney, and the defense attorney when the defendant is placed or moved to a different program. (II) The department shall admit tier 1 defendants for restoration services within seven days after receipt of the court order and collateral materials; (III) The department shall admit tier 2 defendants for restoration services within twenty-eight days after receipt of the court order and collateral materials and shall advise the court and the bridges court liaison, if applicable, every twenty-eight days after the initial twenty-eight-day period regarding the availability of an inpatient bed and when admission will be offered to the defendant. (b) If a defendant is receiving inpatient restoration services and the executive director concludes that: (I) A less-restrictive facility would be more clinically appropriate, the executive director, with proper notice to the court and consistent with the provisions of part 3 of article 4.1 of title 24, may move the defendant to a less-restrictive facility if, in the executive director's opinion, the defendant is not yet restored to competency but could be properly restored to competency in a less-restrictive facility. If the defendant is not released from custody, the court shall order the department to provide inpatient services at a location determined by the department. (II) Outpatient restoration services would be more clinically appropriate, the department shall: (A) Notify the court and request that the defendant be considered for release on a nonmonetary bond if the defendant is not currently released on bond; and (B) Provide to the court information regarding the appropriate outpatient restoration services, developed in conjunction with the bridges court liaison, when assigned, and the reasons why the defendant could be properly restored to competency on an outpatient basis. d request that the defendant be considered for release on a nonmonetary bond if the defendant is not currently released on bond; and (B) Provide to the court information regarding the appropriate outpatient restoration services, developed in conjunction with the bridges court liaison, when assigned, and the reasons why the defendant could be properly restored to competency on an outpatient basis. (c) If the defendant posts bond or the court orders outpatient restoration services in lieu of continued inpatient services, or if the department believes that the defendant is restored to competency and the defendant is to be released to the community rather than jail upon discharge, the department shall: (I) Assist the defendant with any necessary transportation; (II) Provide the necessary case and medication information for the defendant to the bridges court liaison and the community agency that will provide continued restoration, if applicable, or services; (III) Notify the court and the bridges court liaison that the defendant was released and the defendant's community bond status; and (IV) Coordinate with the court; pretrial services, if applicable; and the bridges court liaison to ensure the defendant receives written notice of the defendant's next court appearance and bond conditions. (d) If the defendant is discharged from the department's custody after receiving inpatient restoration services and the defendant is to be returned to the custody of the county jail, the department shall: (I) Notify the sheriff of the jurisdiction where the defendant is to be returned; (II) Notify the court and the bridges court liaison that the department is returning the defendant to the custody of the county jail; and (III) Work with the sheriff, the bridges court liaison, and any behavioral health providers in the county jail to ensure that the county jail has the necessary information to prevent any decompensation by the defendant while the defendant is in the county jail, which must include medication information when clinically appropriate. (9) Return to custody of county jail. When the department submits a report to the court that the department's position is that the defendant is restored to competency, the defendant may be returned to the custody of the county jail. The sheriff shall return the defendant to the custody of the county jail within seventy-two hours after receipt of the department's notice.

C.R.S. § 16-8.5-112 Venue for collateral hearings

16-8.5-112. Venue for collateral hearings. (1) If a defendant committed to the custody of the department for evaluation or for restoration treatment meets the constitutional requirements for the administration of involuntary medication, the defendant's treating physician may petition the court for an order requiring that the defendant accept the treatment or, alternatively, that the medication be forcibly administered to the defendant. The department shall, prior to the hearing on the petition, deliver a copy of the petition to the court that committed the defendant to the custody of the department, the prosecuting attorney, and the defendant's legal representation in the criminal case, if such representation exists, and to the defendant directly if the defendant does not have legal representation. A physician shall assess and document the defendant's mental status prior to the administration of medication. (2) A petition for involuntary treatment must be heard in the court of the jurisdiction where the defendant is located. The department shall promptly deliver a copy of the order granting or denying the petition to the court that committed the defendant to the custody of the department, the prosecuting attorney, and the defendant's legal representation in the criminal case, if such representation exists, and to the defendant directly if the defendant does not have legal representation. (3) If the committing court elects to transfer venue for medication hearings to the court of the jurisdiction where the defendant is located, the committing county shall reimburse the county where the proceeding is heard for the reasonable costs incurred in conducting the proceeding. Alternatively, the district attorney for the committing county, or in any county or any city and county having a population exceeding fifty thousand people, the county attorney for the committing county, may prosecute the proceeding as the proponent of the physician's petition. (4) If a defendant committed to the custody of the department for evaluation or for restoration treatment is ordered by a court to accept treatment as set forth in subsection (1) of this section and is subsequently returned to jail for pending court proceedings, the county jail may require the defendant to continue to receive the same court-ordered treatment that was administered by the department before the defendant was discharged from inpatient care, or, alternatively, appropriate medical personnel provided by the jail may forcibly administer such court-ordered medication to the defendant.

C.R.S. § 16-8.5-113 Restoration to competency

16-8.5-113. Restoration to competency. (1) The court may order a restoration hearing at any time on its own motion, on motion of the prosecuting attorney, or on motion of the defendant; except that the court shall order a restoration hearing when required pursuant to section 16-8.5-111 (4)(a) or (4)(b). (2) Within fourteen days after receipt of a report from the department or other court-approved provider of restoration services certifying that the defendant is competent to proceed, either party may request a hearing or a second evaluation. The court shall determine whether to allow the second evaluation or proceed to a hearing on competency. If the second evaluation is requested by the court or by an indigent defendant, the evaluation must be paid for by the court. (3) If a second evaluation is allowed, any pending requests for a hearing must be continued until receipt of the second evaluation report. The report of the expert conducting the second evaluation report must be completed and filed with the court within thirty-five days after the court order allowing the second evaluation, unless the time period is extended by the court after a finding of good cause. (4) If neither party requests a hearing or second evaluation within the time frame set forth in subsection (2) of this section, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed. (5) If a party makes a timely request for a hearing, the hearing must be held within thirty-five days after the request for a hearing or, if applicable, within thirty-five days after the filing of the second evaluation report, unless the time is extended by the court after a finding of good cause. (6) At the hearing, the party asserting that the defendant is competent has the burden of proof by a preponderance of the evidence and the burden of submitting evidence. At the hearing, the court shall determine whether the defendant is restored to competency.

C.R.S. § 16-8.5-114 Procedure after hearing concerning restoration to competency

16-8.5-114. Procedure after hearing concerning restoration to competency. (1) If a defendant is found to be restored to competency after the hearing held pursuant to section 16-8.5-113, the court shall resume the criminal proceedings or order the sentence carried out. The court shall credit any time the defendant spent in confinement while committed pursuant to section 16-8.5-111 against any term of imprisonment imposed after restoration to competency. (2) If, after the hearing held pursuant to section 16-8.5-113, the court determines that the defendant remains incompetent to proceed, the court may continue or modify any orders entered at the time of the original determination of incompetency and may commit or recommit the defendant or enter any new order necessary to facilitate the defendant's restoration to mental competency, consistent with the requirements of section 16-8.5-111. (3) Evidence of any determination as to the defendant's competency or incompetency is not admissible on the issues raised by a plea of not guilty, not guilty by reason of insanity, or, for offenses that occurred before July 1, 1995, the affirmative defense of impaired mental condition.

C.R.S. § 16-8.5-116 Certification - reviews - rules

16-8.5-116. Certification - reviews - rules. (1) Repealed/(Deleted by amendment, L. 2024). (2) (a) Within ninety-one days after the entry of the court's order of commitment or order to receive outpatient restoration, the court shall review the case of a defendant who has been determined to be incompetent to proceed with regard to the probability that the defendant will be restored to competency within the reasonably foreseeable future and with regard to the justification for certification, confinement, or continued restoration treatment. The review may be held in conjunction with a restoration hearing held pursuant to section 16-8.5-113. However, if at the review hearing, there is a request by the defendant for a restoration hearing pursuant to section 16-8.5-113, the court shall set the restoration hearing within thirty-five days after the request pursuant to the provisions of section 16-8.5-113. (b) At least ten days before each review, the individual or entity evaluating the defendant shall provide the court with a report describing: (I) An opinion regarding the defendant's competency; (II) Whether there is a substantial probability that the defendant will be restored to competency within the reasonably foreseeable future; (III) Whether there is a substantial probability that the defendant will be restored to competency within the time periods established by this section; (IV) Whether the defendant meets the criteria for an emergency mental health hold pursuant to section 27-65-106; (IV.3) Whether the defendant meets the criteria for a certification for short-term treatment pursuant to section 27-65-108.5 or 27-65-109 and, if the defendant meets such criteria, whether the evaluator believes the defendant could be treated on an outpatient basis pursuant to section 27-65-111. In assessing whether a defendant with a pending criminal charge is a danger to self or others or is gravely disabled, if the person is incarcerated, the evaluator shall not rely on the fact that the defendant is incarcerated or is an inpatient in a medical facility to establish the defendant is not a danger to self or others or is not gravely disabled. (IV.5) Whether the defendant has an intellectual and developmental disability, as defined in section 25.5-10-202, and if the defendant does have such a disability, whether the defendant may be eligible for any additional services pursuant to article 10 of title 25.5 or article 10.5 of title 27. (V) Any and all efforts made for restoration through medication, therapy, education, or other services and the outcome of those efforts in relation to restoring the defendant to competency; (VI) Repealed. (VII) If the defendant has failed to cooperate with treatment, whether the incompetency and mental or intellectual and developmental disability contributes to the defendant's refusal or inability to cooperate with restoration or prevents the ability of the defendant to cooperate with restoration; and (VIII) A summary of the observations of the defendant by the treating staff at the facility or other location where inpatient services were delivered. reatment, whether the incompetency and mental or intellectual and developmental disability contributes to the defendant's refusal or inability to cooperate with restoration or prevents the ability of the defendant to cooperate with restoration; and (VIII) A summary of the observations of the defendant by the treating staff at the facility or other location where inpatient services were delivered. (c) At least ten days before each review, the department treating team shall provide to the court an additional report that summarizes: (I) What restorative education has been provided and the frequency of that education; (II) What medication has been administered, including voluntary or involuntary medications; (III) What release plans have been made for the defendant after release, including a discussion of the support from family members; (IV) Whether or not the defendant would agree to voluntary admission to the hospital for certification pursuant to article 65 of title 27; (V) The opinion of the treating team on the defendant's mental health functioning and ability to function on an outpatient basis for restoration services; (VI) Whether the defendant, based on observations of the defendant's behavior in the facility, presents a substantial risk to the physical safety of the defendant's self, of another person, or of the community if released for community restoration; and (VII) Any opinions which would be required during an initial evaluation pursuant to section 16-8.5-105 (5)(f). (3) After the initial review pursuant to subsection (2)(a) of this section, the court shall review the case of the defendant every ninety-one days. At least ten days before each review, the individual or entity evaluating the defendant shall provide the court with an updated report as described in subsection (2)(b) of this section and the treatment staff shall provide an updated summary of observations as described in subsection (2)(c) of this section. (4) Repealed. (5) The court shall forward a copy of each report and summary received pursuant to subsections (2) and (3) of this section to the county attorney or district attorney required to conduct proceedings pursuant to section 27-65-113 (6) for the county in which the case is pending and, when a bridges court liaison is appointed, to the bridges court liaison. (6) to (15) Repealed.

C.R.S. § 16-8.5-116.5 Restoration - time limits - dismissal of charges - exceptions - rules

16-8.5-116.5. Restoration - time limits - dismissal of charges - exceptions - rules. (1) To ensure compliance with relevant constitutional principles, for any offense for which the defendant is ordered to receive competency restoration services in an inpatient or outpatient setting, if the court determines, based on available evidence, that there is not a substantial probability that the defendant, with restoration services, will be restored to competency within the reasonably foreseeable future, the court: (a) Shall dismiss the criminal proceedings, the commitment, or the restoration services order upon motion of the district attorney, the defendant, or on its own motion; (b) May order the district attorney, or upon request from the district attorney, a professional person, as defined in section 27-65-102; a representative of the behavioral health administration in the department; or a representative of the office of civil and forensic mental health to initiate, in a court with jurisdiction, a proceeding for a certification for short-term treatment of the defendant pursuant to section 27-65-108.5 or 27-65-109 if the court finds reasonable grounds to believe the defendant meets criteria for a certification for short-term treatment pursuant to section 27-65-108.5 or 27-65-109; (c) May, or a party may, initiate an action to restrict the rights of the defendant pursuant to article 10.5 of title 27 in the case of a defendant who has been found eligible for services pursuant to article 10.5 of title 27 due to an intellectual and developmental disability; or (d) Shall require the department to ensure that case management services and support are made available to any defendant released from commitment pursuant to this article 8.5 due to the substantial probability that the defendant will not be restored to competency in the reasonably foreseeable future. (2) At a review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement pursuant to subsection (7) of this section if: (a) The defendant's highest charged offense is a class 1 misdemeanor or is a level 4 drug felony and the defendant has been in the department's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to the department for court-ordered restoration for an aggregate time of six months; and (b) The court determines, based on available evidence, that the defendant remains incompetent to proceed. (3) At a review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement pursuant to subsection (7) of this section if: (a) The defendant's highest charged offense is a class 5 or class 6 felony or a level 3 drug felony and the defendant has been in the department's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to the department for court-ordered restoration for an aggregate period of one year; and (b) The court determines, based on available evidence, that the defendant remains incompetent to proceed. (4) At a review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement pursuant to subsection (7) of this section, if: (a) The defendant's highest charged offense is a class 4 felony and the defendant has been in the department's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to the department for court-ordered restoration for an aggregate period of two years; and release the defendant from confinement pursuant to subsection (7) of this section, if: (a) The defendant's highest charged offense is a class 4 felony and the defendant has been in the department's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to the department for court-ordered restoration for an aggregate period of two years; and (b) The court determines, based on available evidence, that the defendant remains incompetent to proceed. (5) Subsections (2), (3), and (4) of this section do not apply if the defendant is charged with a class 1, 2, or 3 felony offense; a sex offense as defined in section 18-1.3-1003 (5); a crime of violence as defined in section 18-1.3-406 (2); or a level 1 or level 2 drug felony. (6) The court shall dismiss the defendant's case if: (a) The defendant is found incompetent to proceed; (b) The charges against the defendant have not been dismissed pursuant to this section; and (c) The defendant's presentence confinement credit, including any time period the defendant was committed for inpatient restoration, or confined in jail or another detention facility awaiting inpatient restoration services, exceeds the maximum sentence for the defendant's highest charged offense. (7) Prior to the dismissal of charges pursuant to this section or section 16-8.5-111 (5), unless the court has already ordered a person to initiate proceedings for a certification for short-term treatment, the court shall make findings whether there are reasonable grounds to believe the person meets the standard for a certification for short-term treatment. If the court finds there are reasonable grounds, the court may stay the dismissal for thirty-five days and notify any professional person, as defined in section 27-65-102, a representative of the behavioral health administration in the department, or a representative of the office of civil and forensic mental health who has recently treated or interacted with the defendant that there are reasonable grounds for short-term treatment and afford the person an opportunity to pursue certification proceedings or to arrange necessary services. (8) Prior to the dismissal of charges pursuant to section 16-8.5-111 (5), when the defendant's diagnosis includes a neurocognitive or neurodevelopmental impairment, the court may stay the dismissal for thirty-five days. If the court stays the dismissal, the court may order the bridges court liaison to assist with case planning and coordinating with services, including coordinating with government entities or community-based organizations that are capable of providing resources to the defendant upon dismissal of charges. (9) In any circumstance when the defendant's case was dismissed or the defendant was released from confinement, the court shall enter a written decision explaining why the court did or did not terminate the criminal proceeding or the commitment or restoration order. (10) If charges against a defendant are dismissed pursuant to this section or section 16-8.5-111 (5), such charges are not eligible for sealing pursuant to section 24-72-705. (11) The department shall promulgate such rules as necessary to consistently enforce the provisions of this article 8.5. (12) The court shall, at an appropriate time in the restoration process, order the department or the appointed bridges court liaison, as defined in section 13-95-102, to provide the court with an appropriate individualized release plan developed in conjunction with any necessary community providers or resources for the reintegration of the defendant into the community with appropriate services. (13) When the defendant is charged with an offense in municipal court and the defendant is found incompetent to proceed, or when civil commitment proceedings are initiated pursuant to article 65 of title 27, the municipal court shall dismiss the case. onjunction with any necessary community providers or resources for the reintegration of the defendant into the community with appropriate services. (13) When the defendant is charged with an offense in municipal court and the defendant is found incompetent to proceed, or when civil commitment proceedings are initiated pursuant to article 65 of title 27, the municipal court shall dismiss the case. (14) If a defendant is in custody and the department does not comply with the time limits set forth in section 16-8.5-111, the defendant is subject to the time limits set forth in subsections (2), (3), and (4) of this section and, based upon the best available evidence, the defendant will not be admitted to an inpatient facility to begin restoration within the time limits described in the applicable subsection, the court may release the defendant or dismiss the case in lieu of the defendant remaining in custody on a wait list for restoration services. (15) When a defendant is in custody and is found incompetent to proceed, at every subsequent review of the defendant's case, the court shall make a finding on the record regarding the expiration of applicable time limits set forth in this section. (16) If a defendant files a motion alleging the court is required to dismiss the case because a time limit in this section has expired, the defendant is entitled to a timely hearing and ruling on the motion.

C.R.S. § 16-8.5-117 Escape - return to institution

16-8.5-117. Escape - return to institution. If a defendant committed to the custody of the executive director for a competency evaluation or for restoration to competency escapes from the institution or hospital, the chief officer of the institution or hospital shall apply to the district court for the county in which the institution or hospital is located for a warrant of arrest directed to the sheriff of the county, commanding the sheriff to take all necessary legal action to effect the arrest of the defendant and to return the defendant promptly to the institution or hospital. The fact of an escape becomes a part of the official record of the defendant and must be certified to the committing court as part of the record in any proceeding to determine whether the defendant is eligible for release on bond or from custody.

C.R.S. § 16-8.5-118 Temporary removal for treatment and rehabilitation

16-8.5-118. Temporary removal for treatment and rehabilitation. The chief officer of an institution where a defendant has been committed pursuant to this article 8.5 may authorize treatment and rehabilitation activities involving temporary physical removal of the defendant from the institution where the defendant has been placed in accordance with the procedures and requirements of section 16-8-118.

C.R.S. § 16-8.5-119 Competency evaluation advisory board - creation - membership - duties - rules - repeal

16-8.5-119. Competency evaluation advisory board - creation - membership - duties - rules - repeal. (Repealed)

C.R.S. § 16-8.5-120 Competency evaluation monitoring system - users - rules

16-8.5-120. Competency evaluation monitoring system - users - rules. (1) The department, with assistance from the judicial department, shall develop an electronic system to track the status of defendants in the criminal justice system for whom a competency evaluation or competency restoration has been ordered. The system must contain information on the following: (a) The date the court ordered the evaluation; (b) The dates of and locations where the evaluation was started and completed; (c) The date of and location where the defendant entered restoration services; (d) The dates and results of court reviews of competency; (e) Inpatient bed space; (f) Community restoration capacity; and (g) Financial estimates of costs of each inpatient and outpatient program to identify inefficiencies. (2) The department shall establish who has access to enter information into the electronic system and who may have read-only access to the electronic system.

C.R.S. § 16-8.5-121 Restoration services placement guideline - committee - creation - repeal

16-8.5-121. Restoration services placement guideline - committee - creation - repeal. (Repealed)

C.R.S. § 16-8.5-122 Forensic evaluator training

16-8.5-122. Forensic evaluator training. By February 1, 2020, the department shall create a partnership with an accredited institution of higher education in the state to develop and provide rigorous training in forensic evaluation. On or before January 1, 2021, newly hired competency evaluators must complete a training that addresses competency, sanity, report writing, expert testimony, and other skills crucial for forensic evaluators; except that competency evaluators who are forensic psychiatrists certified or certification-eligible by the American board of psychiatry and neurology and forensic psychologists who are certified or certification-eligible by the American board of forensic psychology may be exempt from any training requirements as outlined in this section through an exemption process to be developed by the department. The state will manage an oversight program that will provide support and ensure quality of forensic evaluators.

C.R.S. § 16-8.5-123 Competency services - inpatient beds - funding - repeal

16-8.5-123. Competency services - inpatient beds - funding - repeal. (Repealed)

C.R.S. § 16-8.5-124 Transparency requirements

16-8.5-124. Transparency requirements. (1) The department shall post publicly on the office of civil and forensic mental health's website: (a) All policies and procedures related to competency evaluations, restoration services, management of the competency wait list, and admission policies regarding inpatient restoration services, including services for jail-based restoration and private hospital beds; (b) The number of beds currently available and occupied for jail-based restoration services; (c) The number of beds currently available and occupied in private hospitals for inpatient restoration services; (d) The number of beds currently available in each state-run hospital and occupied by adult civil patients, adult restoration patients, and adult not guilty by reason of insanity commitments; (e) The number of beds currently available in each state-run hospital and occupied by juvenile patients; (f) The number of individuals on the competency restoration wait list; (g) The length of competency wait list times and an explanation of the methodology used to calculate the wait times; and (h) Any projected dates for the opening of new beds and a description of what type of beds will become available.
Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://leg.colorado.gov/sites/default/files/images/olls/crs2024-title-16.docxFetched: 10/6/2026