Colorado § 27-81-111 - Emergency commitment.

§ 27-81-111. Emergency commitment.

(1) (a) When a person is under the influence of or incapacitated by substances and is clearly dangerous to the health and safety of the person's self or others, law enforcement authorities or an emergency service patrol, acting with probable cause, shall take the person into protective custody in an approved treatment facility. If no such facilities are available, the person may be detained in an emergency medical services facility, or jail, but only for as long as may be necessary to prevent injury to the person's self or others or to prevent a breach of the peace. A law enforcement officer or emergency service patrol officer, in detaining the person, is taking the person into protective custody. In so doing, the detaining officer may protect the officer's self by reasonable methods but shall make every reasonable effort to protect the detainee's health and safety. Taking a person into protective custody pursuant to this section is not an arrest, and an entry or other record shall not be made to indicate that the person has been arrested or charged with a crime. Law enforcement or emergency service personnel who act in compliance with this section are acting in the course of their official duties and are not criminally or civilly liable. Nothing in this subsection (1) precludes a person intoxicated by alcohol, under the influence of drugs, or incapacitated by substances who is not dangerous to the health and safety of the person's self or others from being assisted to the person's home or like location by the law enforcement officer or emergency service patrol officer.

(b) (Deleted by amendment, L. 2024.)

(c) A law enforcement officer or emergency service patrol officer who takes a juvenile into protective custody pursuant to subsection (1)(a) of this section shall not detain the juvenile in jail.

(2) A law enforcement officer, emergency service patrol officer, physician, spouse, guardian, or relative of the person to be committed or any other responsible person may make a written application for emergency commitment under this section, directed to the administrator of the approved treatment facility. The application must state the circumstances requiring emergency commitment, including the applicant's personal observations and the specific statements of others, if any, upon which the applicant relies in making the application. A copy of the application must be furnished to the person to be committed.

(3) If the administrator approves the application, the administrator shall commit, evaluate, and treat the person for a period not to exceed five days. A peace officer, the emergency service patrol, or any interested person shall bring the person to the facility. If necessary, the court may be contacted to issue an order to the police, the peace officer's department, or the sheriff's department to transport the person to the facility.

(4) If the administrator determines that the application fails to sustain the grounds for emergency commitment as set forth in subsection (1) of this section, the administrator shall refuse the commitment, immediately release the detained person, and encourage the person to seek voluntary treatment, if appropriate.

(5) When the administrator determines that the grounds for commitment no longer exist, the administrator shall discharge the person committed under this section. A person committed under this section must not be detained in any treatment facility for more than five days; except that a person may be detained for longer than five days at the approved treatment facility if, in that period of time, a petition for involuntary commitment has been filed pursuant to section 27-81-112. A person must not be detained longer than ten days, excluding weekends and holidays, after the date of filing of the petition for involuntary commitment unless a valid medical reason exists for detaining a person longer.

(6) Whenever a person is involuntarily detained pursuant to this section, the administrator shall, within twenty-four hours after detainment, advise the person who is involuntarily detained, both orally and in writing, of the person's right to challenge the detention by application to the courts for a writ of habeas corpus, to be represented by counsel at every stage of any proceedings relating to commitment and recommitment, and to have counsel appointed by the court or provided by the court if the person wants the assistance of counsel and is unable to obtain counsel.

(7) Any law enforcement officer, emergency service personnel, physician, spouse, guardian, or relative of any person to be committed; any treatment facility administrator or the administrator's designee; or any other employee or person acting on behalf of an approved treatment facility, participating in or carrying out the emergency commitment or treatment as described in this section, whether acting individually or in his or her official capacity, is not criminally or civilly liable therefor.

(8) (a) On or before July 1, 2024, and each July 1 thereafter, each local law enforcement agency that has taken a person into protective custody pursuant to this section shall provide an annual report to the BHA that includes only disaggregated and nonidentifying information concerning persons who were taken into protective custody in an approved treatment facility or detained in an emergency medical services facility or jail. The report must comply with section 24-1-136 (9) and is exempt from section 24-1-136 (11)(a)(I). The report must contain the following:

(I) The names and counties of the facilities and jails;

(II) The total number of persons taken into protective custody pursuant to this section, including a summary of demographic information;

(III) A summary regarding the different reasons for which persons were taken into protective custody pursuant to this section; and

(IV) The length of time each person was held under protective custody.

(b) Each emergency medical services facility that detains a person under protective custody or detains or holds a person on an emergency commitment shall provide a quarterly report to the BHA with the following information:

(I) The total number of persons detained under protective custody and the total number of persons held in the emergency medical services facility on an emergency commitment;

(II) The total number of days each person was detained or held;

(III) Whether each person was transferred to another facility, released, or placed on an involuntary commitment; and

(IV) Whether the emergency medical services facility transferred each person to the local jail to be detained under protective custody or for an emergency commitment and the reason for the transfer.

(c) Any information disaggregated and provided to the BHA pursuant to this subsection (8) is privileged and confidential. The BHA shall not make the information available to the public except in an aggregate format that cannot be used to identify an individual facility. The information is not subject to civil subpoena and is not discoverable or admissible in any civil, criminal, or administrative proceeding against an approved treatment facility, emergency medical services facility, jail, law enforcement officer, or emergency service patrol officer. The BHA shall only use the information to assess statewide behavioral health services needs and withdrawal management needs and to plan for sufficient levels of statewide behavioral health and withdrawal management services. In collecting the data pursuant to the requirements of this subsection (8), the BHA shall protect the confidentiality of patient records, in accordance with state and federal laws, and shall not disclose any public identifying or proprietary information of any approved treatment facility or emergency medical services facility. This subsection (8)(c) does not apply to information that is otherwise available from a source outside of the data collection activities required pursuant to subsection (8)(a) of this section.

Source: L. 2010: Entire article added with relocations, (SB 10-175), ch. 188, p. 739, § 2, effective April 29. L. 2020: Entire section amended, (SB 20-007), ch. 286, p. 1399, § 20, effective July 13. L. 2021: (1)(a) amended, (SB 21-059), ch. 136, p. 749, § 132, effective October 1. L. 2024: (1) amended and (8) added, (HB 24-1079), ch. 199, p. 1218, § 2, effective May 17.

Editor's note: This section is similar to former § 25-1-310 as it existed prior to 2010.

ANNOTATION

Law reviews. For comment, "Leake v. Cain: Abrogation of the Public Duty Doctrine in Colorado?", see 59 U. Colo. L. Rev. 383 (1988).

Annotator's note. Since § 27-81-111 is similar to § 25-1-310 as it existed prior to the 2010 amendments to this article, relevant cases construing that provision have been included in the annotations to this section.

Due process considerations. A judicial hearing as a prerequisite to commitment of a clearly dangerous intoxicated person would hinder the government's efforts in controlling alcohol abuse without providing additional procedural safeguards. Due process demands only that a neutral fact finder independently determine that the statutory requirements for commitment and release are satisfied. Due process does not dictate that the neutral and detached fact finder be law-trained or a judicial or administrative officer. Carberry v. Adams County Task Force on Alcoholism, 672 P.2d 206 (Colo. 1983).

Intent of subsection (1). In enacting subsection (1), the general assembly did not intend the police to take into protective custody every intoxicated person they meet. Rather, the general assembly designated a specific class of intoxicated persons who are subject to emergency commitment and left the determination of whether a particular individual is clearly dangerous to the police. Therefore, the decision to take a person into protective custody is discretionary and protected by official immunity. Leake v. Cain, 720 P.2d 152 (Colo. 1986).

Class of persons section was designated to protect. Respondents-decedents are not included within the class of persons that subsection (1) was designated to protect, since the statutory intent was not to protect members of the public against intoxicated persons. Therefore, police officers had no duty to take defendant into "protective custody" or to escort him to his home. Leake v. Cain, 720 P.2d 152 (Colo. 1986).

The language of this section indisputably articulates a clear legislative determination that the act of taking a person into civil protective custody is not an arrest. Colo. v. Dandrea, 736 P.2d 1211 (Colo. 1987); Anaya v. Crossroads Care Sys., 973 F. Supp. 1228 (D. Colo. 1997).

This section cannot be used to justify the equivalent of a criminal custodial arrest not supported by probable cause. People v. Dandrea, 736 P.2d 1211 (Colo. 1987).

This section clearly contemplates encounters between police officers and those whom they perceive are intoxicated, without any requirement that the officers also suspect involvement in criminal activity. People v. Herrera, 1 P.3d 234 (Colo. App. 1999).

In order to take an individual into protective custody under this section, an officer must have probable cause to believe that the person is sufficiently intoxicated as to be a danger to himself, herself, or others, given the totality of the circumstances. United States v. Gilmore, 945 F. Supp. 2d 1211 (D. Colo. 2013).

A pat-down search under this section is justified by a reasonable concern for police officer safety as balanced against a limited intrusion into an individual's expectation of privacy. People v. Dandrea, 736 P.2d 1211 (Colo. 1987); United States v. Gilmore, 945 F. Supp. 2d 1211 (D. Colo. 2013).

When a search is conducted pursuant to protective custody the scope of the officer's inventory search is limited by the privacy interest of the detainee. People v. Chaves, 855 P.2d 852 (Colo. 1993).

Officers exceeded their authority under this section by conducting an inventory search at the point of detention, rather than just a pat-down search. People v. Herrera, 1 P.3d 234 (Colo. App. 1999).

The inventory search of a civil detainee does not permit officers to search closed containers without a warrant. The purpose of such a search is to ensure that all of the detainee's possessions are held safely and to remove those which may be dangerous. People v. Chaves, 855 P.2d 852 (Colo. 1993).

Limited pat-down search of person being taken into protective custody did not violate the fourth amendment of the U.S. constitution, and the pistol discovered during that search need not be suppressed, because the police officer had probable cause to initiate the process of taking the person into protective custody. United States v. Gilmore, 945 F. Supp. 2d 1211 (D. Colo. 2013).