2023 Colorado Revised Statutes › Title 16 - CRIMINAL PROCEEDINGS (§§ 16-1-101 — 16-23-105) › CODE OF CRIMINAL PROCEDURE (§§ 16-1-101 — 16-13-1002) › Article 8.5 - COMPETENCY TO PROCEED (§§ 16-8.5-101 — 16-8.5-124) › Section 16-8.5-111 - [Effective 8/7/2024] 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:
(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.
(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
(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.
(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.
(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
(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.
(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.
Amended by 2024 Ch. 471,§ 12, eff. 8/7/2024.
Amended by 2024 Ch. 372,§ 9, eff. 7/1/2024.
Amended by 2023 Ch. 423,§ 2, eff. 7/1/2024.
Amended by 2023 Ch. 206,§ 1, eff. 5/16/2023.
Amended by 2022 Ch. 451, § 24, eff. 8/10/2022.
Amended by 2022 Ch. 317, § 3, eff. 7/1/2022.
Amended by 2022 Ch. 222, § 14, eff. 7/1/2022.
Amended by 2020 Ch. 70, § 8, eff. 9/14/2020.
Amended by 2020 Ch. 144, § 2, eff. 6/29/2020.
Amended by 2019 Ch. 227, § 5, eff. 7/1/2019.
Amended by 2017 Ch. 404, § 1, eff. 8/9/2017.
L. 2008: Entire article added, p. 1845, § 2, effective July 1. L. 2017: (2)(a) amended, (SB 17-012), ch. 2108, p. 2108, § 1, effective August 9. L. 2019: (2) amended and (3) added, (SB 19-223), ch. 2280, p. 2280, § 5, effective July 1. L. 2020: (2)(a) and (2)(b)(II) amended and (2)(a.5) added, (SB 20-181), ch. 625, p. 625, § 2, effective June 29; (2)(a) amended, (SB 20 -136), ch. 283, p. 283, § 8, effective September 14.
(1) This section is similar to former § 16-8-112 as it existed prior to 2008.
(2) Amendments to subsection (2)(a) by SB 20-136 and SB 20-181 were harmonized.
2024 Ch. 471, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
2023 Ch. 423, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
This section is set out more than once due to postponed, multiple, or conflicting amendments.
(1) For release on bail, see part 1 of article 4 of this title 16. (2) For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.