Key Information

Relevant Statutes and Rules

Colo. Rev. Stat. Ann. § 16-8.5-101 et seq.

What proceedings can occur while the defendant is incompetent

[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.

Colo. Rev. Stat. Ann. § 16-8.5-102

Number of examiners required

1

§ 16–8.5–105

Qualifications of examiners

“'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.

§ 16-8.5-101(3)

What must the evaluation report contain

"(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.;

(e) an opinion as to whether 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.

(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. As part of forming their opinion, the competency evaluator shall use due diligence in the review and summary of any prior competency opinions regarding the defendant. If the competency evaluator's opinion regarding restorability differs from opinions in past evaluations of the defendant, the competency evaluator shall explain the basis for their different opinion.

(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;

(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."

§ 16–8.5–105(5)

Are low-level offenses excluded from restoration

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.

Colo. Rev. Stat. Ann. § 16-8.5-116(15).

Municipal court handles minor criminal matters that are violations of city ordinances such as traffic violations or shoplifting.

(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.

Colo. Rev. Stat. Ann. § 16-8.5-111(1.6)

Is there a pathway for diversion following a finding of incompetence to stand trial

Bridges wrap-around program:

Before finding of incompetency:

"(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.

Co. Rev. Stat. Ann.  § 16-8.5-102(4)

After finding of incompetency:

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.

Co. Rev. Stat. Ann.  § 16-8.5-111(1.5).

Certification for short-term treatment:

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.

Colo. Rev. Stat. Ann. § 16-8.5-111(3).

What are the locations for restoration services

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.

§16-8.5-111(2)(a)

Outpatient presumption for individuals charged with misdemeanors, petty offenses, or traffic offenses. To order inpatient services in those cases, "the court shall make findings of fact that extraordinary circumstances exist to overcome the presumption of release by clear and convincing evidence."

§ 16-8.5-111(2)(b)

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.

§ 16-8.5-111(2)(c)
 

What is the test for restorability

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 [of unrestorability created by the admittance of a report stating as much].

§ 16-8.5-111(4)(d)

What is the procedure after restoration

Within 14 days after notice of restoration, either party can request a hearing or a second evaluation. If court allows second evaluation, it must be completed within 35 days. If a party requests a hearing, it must be completed within 35 days, or 35 days after the second evaluation is filed. If neither party requests a hearing or evaluation, court shall enter final determination on competency.

§§ 16-8.5-113(1)-(6).

What is the procedure if there is a finding of unrestorability

If court finds defendant unrestorable after a hearing, it must dismiss charges but, prior to dismissal, may order initiation of petition for short-term court-ordered treatment.

§ 16-8.5-111(4)(d), 16-8.5-116.5(7).

What are the time limits on initial transfer to restoration services

Inpatient: Transfer must occur within 7 days for tier 1 defendants, 28 days for tier 2 defendants.

§ 16-8.5-111(8)(a)

Tier 1 is a defendant for whom delaying hospitalization beyond 7 days "would cause harm to the defendant or others."

§16-8.5-101.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

The court shall dismiss the charges and release the defendant from confinement.

§§ 16-8.5-116(7), (8), (9)

Prior to dismissal, court shall make findings whether there are reasonable grounds to believe the person meets the standard for a certification for short-term treatment. If grounds exist, court may stay dismissal for thirty-five days and notify appropriate individual to begin certification proceedings.

§ 16-8.5-116.5(7).

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

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.

§ 16-8.5-105(1)(a)(III)

(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 must 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 must notify the department of the specific findings the court made to deny the personal recognizance bond. The judicial department shall develop a form for a court to use to notify the department of the court's findings that are required by this subsection (2)(b).

§ 16-8.5-111(2)(b)

Time limits on treatment

Time limits are aggregate of treatment + other time in confinement

If defendant is confined and accused of class 1 misdemeanor or level 4 drug felony: 6 mos.

§16-8.5-116.5(2).

If defendant is confined and accused of a class 5 or class 6 felony, or a level 3 drug felony: 1 yr.

§16-8.5-116.5(3).

If defendant is confined and accused of class 4 felony: 2 yrs.

§ 16-8.5-116.5(4).

If defendant's case has not been dismissed under the above circumstances: maximum sentence.

§ 16-8.5-116.5(6).