Commitment and observation

16-8-122. Commitment and observation. Upon the termination of the period of observation of a defendant committed under section 16-8-106, the authorities shall present to the court their account, evidenced by a statement thereof based upon the established per diem rate of the place of confinement. If approved by the court, the account shall be paid by the state pursuant to section 13-3-104, C.R.S. Source: L. 72: R&RE, p. 233, � 1. C.R.S. 1963: � 39-8-122. L. 75: Entire section amended, p. 210, � 27, effective July 16. PART 2 INTENSIVE TREATMENT MANAGEMENT FOR PERSONS WITH MENTAL ILLNESS 16-8-201 to 16-8-206. (Repealed) Editor's note: (1) This part 2 was added in 2000 and was not amended prior to its repeal in 2007; except that section 1 of House Bill 07-1336 provided for the repeal of section 16-8-205 (2) and (3), effective May 10, 2007. (See L. 2007, p. 755.) For the text of this part 2 prior to 2007, consult the 2006 Colorado Revised Statutes. (2) Section 16-8-206 provided for the repeal of this part 2, effective July 1, 2007. (See L. 2000, p. 1559.) PART 3 COMPETENCY OF PERSONS TO BE EXECUTED 16-8-301 to 16-8-307. (Repealed) Source: L. 2002: Entire part repealed, p. 1463, � 3, effective October 1. Editor's note: This part 3 was added in 2001 and was not amended prior to its repeal in 2002. For the text of this part 3 prior to 2002, consult the 2001 Colorado Revised Statutes. The provisions of this part 3 were relocated to part 14 of article 1.3 of title 18. For the location of specific provisions, see the editor's notes following each section in said part 14 and the comparative tables located in the back of the index. Cross references: For the legislative declaration contained in the 2002 act repealing this part 3, see section 1 of chapter 318, Session Laws of Colorado 2002. ARTICLE 8.5 Competency to Proceed Editor's note: This article was added with relocations in 2008 containing provisions of some sections formerly located in article 8 of this title. Former C.R.S. numbers are shown in editor's notes following those sections that were relocated. Cross references: For the legislative declaration contained in the 2008 act enacting this article, see section 1 of chapter 389, Session Laws of Colorado 2008. 16-8.5-101. Definitions. As used in this article 8.5, unless the context otherwise requires: (1) Collateral materials means the relevant police incident reports and the charging documents, either the criminal information or indictment. (2) Competency evaluation includes both court-ordered competency evaluations and second evaluations. (3) 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. (4) Competency hearing means a hearing to determine whether a defendant is competent to proceed. (5) Competent to proceed means that the defendant does not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents the defendant from having a rational and factual understanding of the criminal proceedings. (6) Court-ordered competency evaluation means a court-ordered examination of a defendant either before, during, or after trial, directed to developing information relevant to a determination of the defendant's competency to proceed at a particular stage of the criminal proceeding, that is performed by a competency evaluator and includes evaluations concerning restoration to competency. (7) Court-ordered report means a report of an evaluation, conducted by or under the direction of the department, that is the statutory obligation of the department to prepare when requested to do so by the court. (8) Criminal proceedings means trial, sentencing, satisfaction of the sentence, execution, and any pretrial matter that is not susceptible of fair determination without the personal participation of the defendant. (9) Department means the department of human services. (10) Developmental disability means a disability that has manifested before the person reaches twenty-two years of age, constitutes a substantial disability to the affected individual, and is attributable to an intellectual disability or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with an intellectual disability. Unless otherwise specifically stated, the federal definition of developmental disability, 42 U.S.C. sec. 15002 (8), shall not apply. (11) Executive director means the executive director of the department of human services. (12) Incompetent to proceed means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings. (13) In-custody means in prison, in a jail, or in any other locked detention facility that does not meet the definition of inpatient. (14) Inpatient means in the custody of the department, either in a hospital or in a full-time, jail-based restoration program developed by the department. (15) Mental disability means a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. Mental disability does not include acute intoxication from alcohol or other substances, or any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability. (16) Outpatient means a location outside of the custody of the department. Outpatient does not include a jail, prison, or other detention facility where the defendant is in-custody. (17) Restoration hearing means a hearing to determine whether a defendant who has previously been determined to be incompetent to proceed has become competent to proceed. (18) Second evaluation means an evaluation requested by the court, the district attorney, or the defendant that is performed by a competency evaluator and that is not performed by or under the direction of, or paid for by, the department. (19) Tier 1 means a defendant: (a) Who has been ordered to receive inpatient restorative treatment; (b) For whom a competency evaluator has determined either that the defendant: (I) Appears to have a mental health disorder and, as a result of the mental health disorder, appears to be a danger to others or to himself or herself or appears to be gravely disabled; or (II) Has a mental health disorder; and (c) For whom, as a result of the determination made pursuant to subsection (19)(b) of this section, delaying inpatient hospitalization beyond seven days would cause harm to the defendant or others. (20) Tier 2 means a defendant who has been ordered to receive inpatient restorative treatment and who does not meet the criteria to be a tier 1 defendant. Source: L. 2008: Entire article added, p. 1838, � 2, effective July 1. L. 2018: IP and (7) amended, (HB 18-1109), ch. 139, p. 914, � 3, effective April 23. L. 2019: Entire section amended, (SB 19-223), ch. 227, p. 2273, � 1, effective July 1; (9) amended, (SB 19-241), ch. 390, p. 3465, � 11, effective August 2. L. 2020: (19)(c) amended, (HB 20-1402), ch. 216, p. 1046, � 25, effective June 30. Editor's note: Amendments to this section by SB 19-223 and SB 19-241 were harmonized. 16-8.5-102. Competency to proceed - how and when raised. (1) While a defendant is incompetent to proceed, the defendant must not be tried or sentenced, nor shall the court consider or decide pretrial matters that are not susceptible of fair determination without the personal participation of the defendant. However, 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. Those proceedings may be later reopened if, in the discretion of the court, substantial new evidence is discovered after and as a result of the defendant's restoration to competency. (2) The question of a defendant's competency to proceed must be raised in only one of the following manners: (a) If the judge has reason to believe that the defendant is incompetent to proceed, the judge shall suspend the proceeding and determine the competency or incompetency of the defendant pursuant to section 16-8.5-103; (b) If either the defense or the prosecution has reason to believe that the defendant is incompetent to proceed, either party may file a motion in advance of the commencement of the particular proceeding. A motion to determine competency shall be in writing and contain a certificate of counsel stating that the motion is based on a good faith doubt that the defendant is competent to proceed. The motion must set forth the specific facts that have formed the basis for the motion. The court must seal the motion. If the motion is made by the prosecution, the prosecution shall provide the defense a copy of the motion. If the motion is made by the defense, the defense shall provide the prosecution notice of the filing of the motion at the time of filing, and if the defense requests a hearing, the defense shall provide the motion to the prosecution at the time the hearing is requested. The motion may be filed after the commencement of the proceeding if, for good cause shown, the defendant's mental disability or developmental disability was not known or apparent before the commencement of the proceeding. (c) Repealed. (d) By the public defender liaison, as described in section 21-1-104 (6), or an attorney representing the offender in a parole proceeding. (3) Notwithstanding any provision of this article 8.5 to the contrary, the question of whether a convicted person is mentally incompetent to be executed must be raised and determined pursuant to part 14 of article 1.3 of title 18. (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. Source: L. 2008: Entire article added, p. 1839, � 2, effective July 1. L. 2018: (2)(c) amended and (2)(d) added, (HB 18-1109), ch. 139, p. 914, � 4, effective April 23. L. 2019: IP(2) and (2)(d) amended and (2)(c) repealed, (SB 19-223), ch. 227, p. 2275, � 2, effective July 1. L. 2024: (1), (2)(a), (2)(b), (2)(d), and (3) amended, (HB 24-1034), ch. 372, p. 2500, � 1, effective June 4; (4) added, (HB 24-1355), ch. 471, p. 3312, � 10, effective August 7. Editor's note: This section is similar to former � 16-8-110 as it existed prior to 2008. 16-8.5-103. Determination of competency to proceed. (1) (a) Whenever the question of a defendant's competency to proceed is raised, by either party or on the court's own motion, the court may make a preliminary finding of competency or incompetency to proceed, which is a final determination unless a party to the case objects within seven days after the court's preliminary finding. (b) On or before the date when a court orders that a defendant be evaluated for competency, a bridges court liaison for the district hired or contracted pursuant to article 95 of title 13 may be assigned to the defendant. (2) If either party objects to the court's preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department and that the department prepare a court-ordered report. (3) Within fourteen days after receipt of the court-ordered report, either party may request a hearing or a second evaluation. (4) If a party requests a second evaluation, any pending requests for a hearing must be continued until the receipt of the second evaluation report. The report of the expert conducting the second evaluation must be completed and filed with the court within thirty-five days after the court order allowing the second evaluation, unless the time period is extended by the court for good cause. The court shall provide the second evaluation to the parties and the department. The department shall use the second evaluation to ensure that the department complies with its responsibilities, including reviewing and summarizing prior competency opinions as required by section 16-8.5-105 (5)(f). If the second evaluation is requested by the court, it must be paid for by the court. (5) If neither party requests a hearing or a second evaluation within the applicable time frame, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed. (6) If a party makes a timely request for a hearing, the hearing shall be held within thirty-five days after the request for a hearing or, if applicable, within thirty-five days after the filing of the second evaluation report, unless the time is extended by the court after a finding of good cause. (7) At any hearing held pursuant to this section, the party asserting the incompetency of the defendant shall have the burden of submitting evidence and the burden of proof by a preponderance of the evidence. (8) If the question of the defendant's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty and the court determines that the defendant is incompetent to proceed or orders a court-ordered competency evaluation, the court may declare a mistrial. Declaration of a mistrial under these circumstances does not constitute jeopardy, nor does it prohibit the trial or sentencing of the defendant for the same offense after the defendant has been found restored to competency. (9) In all proceedings under this article 8.5, when competency has been raised by the parole board pursuant to section 16-8.5-102 (2)(d), the court shall pay for any evaluation to determine competency pursuant to this section, and the evaluation must be conducted at the place where the defendant is in custody. Source: L. 2008: Entire article added, p. 1840, � 2, effective July 1. L. 2012: (1), (3), (4), and (6) amended, (SB 12-175), ch. 208, p. 852, � 80, effective July 1. L. 2018: (9) added, (HB 18-1109), ch. 139, p. 914, � 5, effective April 23. L. 2019: (1), (3), (4), and (8) amended, (SB 19-223), ch. 227, p. 2276, � 3, effective July 1. L. 2020: (8) amended, (SB 20-100), ch. 61, p. 207, � 6, effective March 23. L. 2022: (4) amended, (HB 22-1386), ch. 317, p. 2255, � 1, effective July 1. L. 2023: (1)(b) amended, (SB 23-229), ch. 119, p. 442, � 4, effective April 27. L. 2024: (1)(b) and (8) amended, (HB 24-1034), ch. 372, p. 2501, � 2, effective June 4. L. 2025: (3) and (4) amended, (SB 25-041), ch. 357, p. 1922, � 3, effective August 6. Editor's note: This section is similar to former � 16-8-111 as it existed prior to 2008. Cross references: For the constitutional provision on double jeopardy, see � 18 of article II of the state constitution. 16-8.5-104. Waiver of privilege. (1) When a defendant raises the issue of competency to proceed, or when the court determines that the defendant is incompetent to proceed, any claim by the defendant to confidentiality or privilege is deemed waived in the case in which competency is raised and for records or information from any prior criminal case in which the defendant raised the issue of competency or in which the court determined that the defendant was incompetent to proceed. The district attorney, the defense attorney, the bridges court liaison, and the court are granted access, without written consent of the defendant or further order of the court, to: (a) Reports of competency evaluations, including second evaluations; (b) Information and documents relating to the competency evaluation that are created by, obtained by, reviewed by, or relied on by an evaluator performing a court-ordered evaluation; and (c) The evaluator, for the purpose of discussing the competency evaluation. (2) Upon a request by either party or the court for the information described in subsection (1) of this section, the evaluator or treatment provider shall provide the information for use in preparing for a hearing on competency or restoration and for use during such a hearing. (3) An evaluator or a facility providing competency evaluation or restoration treatment services pursuant to a court order issued pursuant to this article 8.5 shall provide procedural information to the court, bridges court liaison, district attorney, or defense counsel, concerning the defendant's location, the defendant's hospital or facility admission status, the status of evaluation procedures, and other procedural information relevant to the case. (4) Nothing in this section limits the court's ability to order that information in addition to the information described in subsections (1) and (3) of this section be provided to the evaluator, or to either party to the case, nor does it limit the information that is available after the written consent of the defendant. (4.5) The court may, upon the request of either party, issue an order to assist a party in accessing, receiving copies of, or discussing with an evaluator or treatment provider information or records that the party has the right to access pursuant to the defendant's waiver of privilege. If a party requests such an order, the court shall allow the opposing party to make any legal objection, including whether the requested information is within the scope of the defendant's waiver of privilege, and consider any requests for protective orders prior to issuing the court order. This section does not limit the court's ability to order information be provided to a party with the written consent of the defendant. (5) The court shall order both the prosecutor and the defendant or the defendant's counsel to exchange the names, addresses, reports, and statements of each physician or psychologist who has examined or treated the defendant for competency. (6) Statements made by the defendant in the course of any evaluation must be protected in accordance with section 16-8.5-108. Source: L. 2008: Entire article added, p. 1841, � 2, effective July 1. L. 2024: IP(1), (3), (4), and (6) amended and (4.5) added, (HB 24-1034), ch. 372, p. 2501, � 3, effective June 4. 16-8.5-105. 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 the bridges court 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 concludes 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 who 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. 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. (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 the bridges court 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. Source: 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. 227, p. 2276, � 4, effective July 1. L. 2020: (5)(e)(I) amended, (SB 20-181), ch. 144, p. 624, � 1, effective June 29; (6) amended, (SB 20-136), ch. 70, p. 283, � 7, effective September 14. L. 2022: (1)(b)(II) amended, (HB 22-1386), ch. 317, p. 2255, � 2, effective July 1; (1)(a)(IV) and (6) amended, (HB 22-1256), ch. 451, p. 3227, � 23, effective August 10. L. 2023: (1)(a)(III) and (6) amended, (SB 23-229), ch. 119, p. 442, � 5, effective April 27; (4) and (5)(h) amended, (HB 23-1138), ch. 423, p. 2481, � 1, effective July 1, 2024. L. 2024: (1)(a)(I), (1)(a)(III), (1)(b.7), (1)(d), (4), IP(5), (5)(d), (5)(e), (5)(f), (5)(h)(II), and (6) amended and (1)(b.6) added, (HB 24-1034), ch. 372, p. 2502, � 4, effective June 4; (4) amended, (HB 24-1450), ch. 490, p. 3408, � 22, effective August 7. L. 2025: (5)(f) amended, (SB 25-041), ch. 357, p. 1923, � 4, effective August 6. Editor's note: Amendments to subsection (4) by HB 24-1034 and HB 24-1450 were harmonized. Cross references: For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020. 16-8.5-106. Evaluation at request of defendant. (1) If a defendant wishes to be examined by a competency evaluator of his or her own choice in connection with any proceeding under this article, the court, upon timely motion, shall order that the competency evaluator chosen by the defendant be given reasonable opportunity to conduct the second evaluation, in accordance with sections 16-8.5-103 and 16-8.5-111. (2) The defendant shall provide a copy of the second evaluation to the court and prosecution in a reasonable amount of time in advance of the competency or restoration hearing. Upon receipt of the second evaluation, the court shall furnish the second evaluation to the department. Source: L. 2008: Entire article added, p. 1843, � 2, effective July 1. L. 2025: (2) amended, (SB 25-041), ch. 357, p. 1923, � 5, effective August 6. 16-8.5-107. Counsel and evaluators for indigent defendants. In all proceedings brought pursuant to this article 8.5, the court shall appoint a competency evaluator or an attorney for the defendant at the state's expense upon motion of the defendant with proof that the defendant is indigent and without money to employ a competency evaluator or attorney to which the defendant is entitled pursuant to this article 8.5. The court shall pay for a second evaluation if a second evaluation is requested by an indigent defendant. Source: L. 2008: Entire article added, p. 1843, � 2, effective July 1. L. 2024: Entire section amended, (HB 24-1034), ch. 372, p. 2506, � 5, effective June 4. 16-8.5-108. Evidence. (1) (a) Except as otherwise provided in this subsection (1), evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a competency evaluation or involuntary medication proceeding is not admissible against the defendant on the issues raised by a plea of not guilty, or, if the offense occurred before July 1, 1995, a plea of not guilty by reason of impaired mental condition. Such evidence may be admissible at trial to rebut evidence introduced by the defendant of the defendant's mental condition to show incapacity of the defendant to form a culpable mental state; and, in such case, the evidence may only be considered by the trier of fact as bearing upon the question of capacity to form a culpable mental state, and the jury shall be so instructed at the request of either party. (b) Evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a competency evaluation or involuntary medication proceeding is admissible at any sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102 only to prove the existence or absence of any mitigating factor. (c) If the defendant testifies on the defendant's own behalf upon the trial of the issues raised by the plea of not guilty or, for offenses that occurred before July 1, 1995, a plea of not guilty by reason of impaired mental condition, or at a sentencing hearing held pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102, this section does not bar any evidence used to impeach or rebut the defendant's testimony. (2) In any hearing concerning competency to proceed or restoration to competency, competency evaluators and other experts may testify as to the conclusions reached from their examination of hospital records, laboratory reports, X rays, electroencephalograms, and psychological test results if the material that the evaluators or experts examined in reaching their conclusions is produced at the time of the hearing. Nothing in this section prevents the parties from obtaining the information authorized by section 16-8.5-104 prior to the hearing. Source: L. 2008: Entire article added, p. 1843, � 2, effective July 1. L. 2009: (1)(a) and (1)(b) amended, (HB 09-1253), ch. 128, p. 550, � 1, effective August 5. L. 2020: (1)(b) and (1)(c) amended, (SB 20-100), ch. 61, p. 208, � 7, effective March 23. L. 2024: (1)(c) and (2) amended, (HB 24-1034), ch. 372, p. 2506, � 6, effective June 4. 16-8.5-109. Advisement on matters to be determined. (1) When a determination is to be made as to a defendant's competency to proceed, the court shall explain to the defendant the nature and consequences of the proceeding and the rights of the defendant under this section. The defendant, if the defendant wishes to contest the question, may request a competency hearing that the court shall grant as a matter of right. (2) At a competency hearing, the defendant and the prosecuting attorney are entitled: (a) To be present in person; (b) To examine any reports of the competency evaluation or other matter to be considered by the court as bearing upon the determination; (c) To introduce evidence, summon witnesses, cross-examine opposing witnesses or witnesses called by the court; and (d) To make opening and closing statements and arguments. (3) The court may examine or cross-examine any witness called by the defendant or prosecuting attorney at a competency hearing and may summon and examine witnesses on the court's own motion. Source: L. 2008: Entire article added, p. 1844, � 2, effective July 1. L. 2024: (1), (2)(b), and (3) amended, (HB 24-1034), ch. 372, p. 2506, � 7, effective June 4. 16-8.5-110. Testimony of lay witnesses. In any hearing at which the competency of the defendant is an issue, witnesses not specially trained in psychiatry or psychology and not testifying as expert witnesses may testify as to the witness's observation of the defendant's actions and conduct and as to conversations that the witness had with the defendant bearing upon the defendant's mental condition. Any such witnesses, as part of the witness's testimony, must be permitted to give opinions or conclusions concerning the competency of the defendant. Source: L. 2008: Entire article added, p. 1845, � 2, effective July 1. L. 2024: Entire section amended, (HB 24-1034), ch. 372, p. 2507, � 8, effective June 4. 16-8.5-111. Procedure after determination of competency or incompetency - bond determinations. (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 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). (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 pursuant to this subsection (3) only: (A) Upon a specific request from a person authorized to mak