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 16-8.5-105 - [Effective Until 8/7/2024] 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 thebridgescourt 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.
(b.6)
If the evaluator has concluded 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.
(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 that 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.
(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;
(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 thebridgescourt 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.
Amended by 2024 Ch. 372,§ 4, eff. 6/4/2024.
Amended by 2023 Ch. 423,§ 1, eff. 7/1/2024.
Amended by 2023 Ch. 119,§ 5, eff. 4/27/2023.
Amended by 2022 Ch. 451, § 23, eff. 8/10/2022.
Amended by 2022 Ch. 317, § 2, eff. 7/1/2022.
Amended by 2020 Ch. 70, § 7, eff. 9/14/2020.
Amended by 2020 Ch. 144, § 1, eff. 6/29/2020.
Amended by 2019 Ch. 227, § 4, eff. 7/1/2019.
Amended by 2016 Ch. 151, § 1, eff. 7/1/2016.
L. 2008: Entire article added, p. 1842, § 2, effective July 1. L. 2016: (1) amended, (HB 16-1410), ch. 151, p. 450, § 1, effective July 1. L. 2019: (1) and (5) amended and (6), (7), and (8) added, (SB 19-223), ch. 2276, p. 2276, § 4, effective July 1. L. 2020: (5)(e)(I) amended, (SB 20-181), ch. 624, p. 624, § 1, effective June 29; (6) amended, (SB 20 -136), ch. 283, p. 283, § 7, effective September 14.
2023 Ch. 423, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
2022 Ch. 451, 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.
For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.