Colorado § 16-8.5-112 - Review hearing to determine competency - report.

§ 16-8.5-112. Review hearing to determine competency - report.

(1) (a) Within ninety-one days after the entry of the court's order of commitment or order to receive outpatient restoration services, the court shall set a hearing to review the case of a defendant who has been determined to be incompetent to proceed with regard to whether the defendant is restorable or unrestorable and with regard to the justification for certification, confinement, or continued restoration services. The review hearing may be held in conjunction with a restorability hearing held pursuant to section 16-8.5-113 or a restoration hearing held pursuant to section 16-8.5-114. However, if at the review hearing there is a request by the defendant for a restoration hearing pursuant to section 16-8.5-114, the court shall set the restoration hearing within thirty-five days after the request pursuant to the provisions of section 16-8.5-114.

(b) At least ten days before each review hearing, the competency evaluator shall provide the court with a report that includes:

(I) The competency evaluator's opinion regarding the defendant's competency;

(II) If the competency evaluator opines that the defendant remains incompetent, whether the defendant is restorable or unrestorable;

(III) If the competency evaluator opines that the defendant is restorable, whether there is a substantial probability that the defendant will be restored to competency within the time periods established in section 16-8.5-116;

(IV) Whether the defendant meets the criteria for an emergency mental health hold pursuant to section 27-65-106;

(V) Whether the defendant meets the criteria for certification for short-term treatment pursuant to section 27-65-108.5, 27-65-109, or 27-65-109.5 and, if the defendant meets the criteria, whether the competency evaluator believes the defendant could be treated on an outpatient basis pursuant to section 27-65-111. If the defendant is incarcerated or is an inpatient in a medical facility and has a pending criminal charge, in assessing whether the defendant is a danger to the defendant's self, a danger to others, or gravely disabled, as those terms are defined in section 27-65-102, the court, competency evaluator, or professional person, as defined in section 27-65-102, 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 the defendant's self, a danger to others, or gravely disabled. If it is the competency evaluator's opinion that the defendant meets criteria for certification for short-term treatment pursuant to section 27-65-108.5, 27-65-109, or 27-65-109.5, the competency evaluator is not required to request a petition for certification for short-term treatment of the defendant.

(VI) Whether the defendant has a developmental disability, and if the defendant does have a developmental disability, whether the defendant also has a mental health disorder, as defined in section 27-65-102, and 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, or may meet the criteria for a civil proceeding for imposition of a legal disability or removal of a legal right pursuant to section 25.5-10-216. If the competency evaluator's opinion is that the defendant may meet the criteria, the competency evaluator is not required to petition the court for imposition of a legal disability or removal of a legal right.

(VII) Whether the defendant has a neurocognitive disorder, as defined in section 25.5-10-501, and, if the defendant does have a neurocognitive disorder, whether the defendant may meet the criteria for protective placement pursuant to section 25.5-10-502. If the opinion is that the defendant may meet the criteria for protective placement, the competency evaluator is not required to petition the court for protective placement.

(VIII) A description of 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;

(IX) If the defendant has failed to cooperate with restoration services, whether the incompetency and mental disability or developmental disability is the primary reason for the defendant's refusal or inability to cooperate with restoration services; and

(X) A summary of the observations of the defendant by the treatment staff at the facility or other location where inpatient restoration services were delivered.

(c) At least ten days before each review hearing, the CDHS treatment team shall provide to the court an additional report that summarizes:

(I) What restorative education services have been provided to the defendant and the frequency of the education services;

(II) What medication has been administered to the defendant, including voluntary or involuntary medications;

(III) What release plans have been made for the defendant after release, including a discussion of the support from the defendant's 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 treatment team on the defendant's mental health functioning and ability to function on an outpatient basis for restoration services;

(VI) If the defendant is continuing to receive inpatient restoration services, 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 services; and

(VII) Whether the defendant poses a substantial risk of serious harm to others, as defined in section 27-65-102, if:

(A) The defendant is charged with homicide pursuant to part 1 of article 3 of title 18; a crime of violence, as defined in section 18-1.3-406 (2); or a felony that constitutes unlawful sexual behavior, as defined in section 16-22-102; or

(B) The prosecution requested an opinion regarding whether the defendant poses a substantial risk of serious harm to others because the prosecution is aware of an act described in section 16-8.5-118 (6)(b)(I) that is not charged in the current case the defendant is alleged to have committed and is or was charged in a criminal case in Colorado in which competency was raised. If the prosecution requests an opinion pursuant to this subsection (1)(c)(VII)(B), the prosecution shall disclose the uncharged acts to the defendant.

(2) After the initial review hearing conducted pursuant to subsection (1)(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 competency evaluator shall provide the court with an updated competency evaluation report as described in subsection (1)(b) of this section and the treatment staff shall provide an updated summary of observations as described in subsection (1)(c) of this section.

(3) The court shall forward a copy of each report and summary received pursuant to subsections (1) and (2) of this section to the county attorney or district attorney required to conduct proceedings pursuant to section 27-65-113.5 for the county in which the case is pending and, when a bridges court liaison is appointed, to the bridges court liaison.

Source: L. 2026: Entire article amended with relocations, (SB 26-149), ch. 142, p. 700, § 1, effective May 21.

Editor's note: (1) This section was relocated to § 16-8.5-106 in 2026.

(2) This section is similar to former § 16-8.5-116 as it existed prior to 2026.

ANNOTATION

Annotator's note. Since § 16-8.5-112 is similar to repealed § 16-8-114.5, as it existed in 1986, a relevant case construing that provision has been included in the annotations to this section.

This section as amended in 1989 gives the district attorney the authority to initiate the termination of criminal proceedings against an incompetent defendant. The statute does not, however, give the district attorney the power to dictate whether the defendant will be released or civilly committed once the trial court determines that there is not a substantial probability that the defendant will be restored to competency in the foreseeable future. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).

Trial court incorrectly declared this statute to be an unconstitutional violation of due process where it erroneously believed that the defendant has a right to dismissal of criminal charges if it does not appear reasonably likely that he will be competent to stand trial in the future. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).

The decision to request dismissal of pending criminal charges is within the district attorney's discretion and the decision may not be controlled or limited by judicial intervention. Therefore, transferring the decision to dismiss pending criminal proceedings against incompetent defendants from the trial court to the district attorney is consistent with the traditional powers of the trial court and the prosecutor. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).

Since under the pre-1989 and post-1989 versions of subsection (2), a court cannot terminate criminal proceedings against an incompetent defendant until a finding of indefinite incompetency is made, and the trial court did not make such a finding until after the statute was amended, application of the amended statute did not violate the ex post facto clauses of the United States constitution or Colorado constitution. People v. Zapotocky, 869 P.2d 1234 (Colo. 1994).