CO Code § 16-8-101.5 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 8 - Insanity - Release|Part 1 - General Provisions|§ 16-8-101.5. Insanity Defined - Offenses Committed on and After July 1, 1995 - Definitions

  The applicable test of insanity shall be:   A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions, for, when the act is induced by any of these causes, the person is accountable to the law; or    A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.       As used in this section:   “Diseased or defective in mind” does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Evidence of knowledge or awareness of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation shall not constitute inability to distinguish right from wrong.    “Gender identity” and “gender expression” have the same meaning as in section 18-1-901 (3)(h.5).    “Mental disease or defect” includes only those severely abnormal mental conditions that grossly and demonstrably impair a person's perception or understanding of reality and that are not attributable to the voluntary ingestion of alcohol or any other psychoactive substance but does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.    “Sexual orientation” has the same meaning as in section 18-9-121 (5)(b).       This section shall apply to offenses committed on or after July 1, 1995.     History. Source: L. 95: Entire section added, p. 71, § 2, effective July 1. L. 2020: (2) amended,(SB 20-221), ch. 279, p. 1365, § 2, effective July 13. L. 2021: IP(2) amended,(SB 21-266), ch. 423, p. 2800, § 14, effective July 2.    Cross references:   For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.   ANNOTATION   A person adjudicated not guilty by reason of insanity as defined in this section and § 16-8-101 is not a handicapped individual under § 504 of the Rehabilitation Act of 1973. Neiberger v. Hawkins, 239 F. Supp. 2d 1140 (D. Colo. 2002 ).   Exclusion for voluntary ingestion of intoxicating substances applies to both prongs of the insanity test. People v. Grant, 174 P.3d 798 (Colo. App. 2007).   Defendant offered insufficient evidence showing that he was insane or incompetent to stand trial. Since defendant failed to introduce sufficient evidence on those issues, the court need not determine whether defendant could offer evidence of “settled insanity” along with other evidence of his mental condition on the issue of sanity. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).   Trial court properly instructed the jury that “any mental illness suffered by defendant is not a defense in this case”. Defendant's mental illness does not support the defense of involuntary intoxication since the defense of involuntary intoxication involves a temporary condition, and bipolar is not a temporary condition. Defendant's bipolar condition would have provided evidence for an insanity defense, but defendant did not plead insanity, which requires a special pleading. Therefore, the court properly instructed the jury that mental illness was not a defense in this case. People v. Sommers, 200 P.3d 1089 (Colo. App. 2008).   Trial court did not err by finding defendant sane at the time of his offense. Prosecution presented sufficient evidence from two psychologist expert witnesses that defendant's behavior was not driven by insanity but by drugs and antisocial behavior. People v. Porter, 2013 COA 130 , 353 P.3d 852 , rev'd on other grounds, 2015 CO 34, 348 P.3d 922.   The affirmative defense of insanity under this section is available to a defendant who experiences a temporary or long-term bout of insanity so long as he or she was legally insane at the time of the alleged crime. People v. Voth, 2013 CO 61, 312 P.3d 144.   Evidence of defendant's sanity as to one of eleven counts against him was substantial and sufficient to permit a reasonable juror to find that defendant was sane. The issue is whether defendant was capable, at the time he committed the acts, of distinguishing right from wrong with respect to the criminal acts. People v. Eastwood, 2015 COA 150 , 363 P.3d 799.