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Colorado Revised Statutes Title 16. Criminal Proceedings § 16-8.5-116. Certification--reviews--rules

Current as of January 01, 2025 | Updated by Findlaw Staff

(1) Repealed by Laws 2024, Ch. 372 (H.B. 24-1034), § 12, eff. June 4, 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 by Laws 2022, Ch. 317 (H.B. 22-1386), § 4, eff. July 1, 2022.

(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.

(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 by Laws 2024, Ch. 372 (H.B. 24-1034), § 12, eff. June 4, 2024.

(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) Notwithstanding the time periods provided in subsections (7), (8), and (9) of this section and 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 will be restored to competency within the reasonably foreseeable future, the court may order the defendant's release from commitment pursuant to this article 8.5 through one or more of the following means:

(a) Upon motion of the district attorney, the defendant, or on its own motion, the court may terminate the criminal proceedings, the commitment, or the restoration services order;

(b) 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, the court 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;

(c) 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, the court or a party may initiate an action to restrict the rights of the defendant pursuant to article 10.5 of title 27; or

(d) On and after July 1, 2020, the department shall 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 reasonable foreseeable future.

(7) At any 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, subject to subsection (10) of this section, if:

(a) The defendant:

(I) Is charged with a class 1 misdemeanor;

(II) Has been committed to the custody of the department or otherwise confined for an aggregate time of six months; and

(III) Has received competency restoration services while committed or otherwise confined for an aggregate time of six months; and

(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.

(8) At any 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, subject to the provisions of subsection (10) of this section, if:

(a) The defendant:

(I) Is charged with a class 5 or class 6 felony, except for those offenses enumerated in section 24-4.1-302(1), or with a level 3 or level 4 drug felony;

(II) Has been committed to the custody of the department or otherwise confined as a result of a determination of incompetency to proceed; and

(III) Has received competency restoration services while committed or otherwise confined for an aggregate time of one year; and

(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.

(9) If the defendant is charged with any other felony offense except 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, and has been committed to the custody of the department or otherwise confined as a result of a determination of incompetency to proceed, the following provisions apply:

(a) If the defendant has received competency restoration services while committed or otherwise confined for an aggregate time of two years and the court determines, based on available evidence, that the defendant is not restored to competency, then the court shall dismiss the charges against the defendant, subject to the provisions of subsection (10) of this section, unless any party objects to dismissal.

(b) If a party objects to dismissal of charges pursuant to subsection (9)(a) of this section, the court shall set the matter for a hearing. Upon completion of the hearing, the court shall dismiss the charges unless the court determines that the party objecting to the dismissal establishes by clear and convincing evidence that there is a compelling public interest in continuing the prosecution and there is a substantial probability that the defendant will attain competency in the foreseeable future. If the court declines to dismiss the charges, the court shall address the appropriateness of continued confinement and may alter or reduce bond if appropriate pursuant to article 4 of this title 16 or the decision to commit the defendant to the department pursuant to section 16-8.5-111.

(10) Prior to the dismissal of charges pursuant to subsection (1), (4), (6), (7), (8), or (9) of this section, 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.

(11) In any circumstance where 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.

<Text of (12) effective July 1, 2025>

(12) Repealed by Laws 2024, Ch. 384 (H.B. 24-1133), § 9, eff. July 1, 2025.

(13) The department shall promulgate such rules as necessary to consistently enforce the provisions of this article 8.5.

(14) 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.

(15) 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.

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Cite this article: FindLaw.com - Colorado Revised Statutes Title 16. Criminal Proceedings § 16-8.5-116. Certification--reviews--rules - last updated January 01, 2025 | https://codes.findlaw.com/co/title-16-criminal-proceedings/co-rev-st-sect-16-8-5-116/

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