C.R.S. § 16-8.5-105: Competency 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. When the court orders a competency evaluation, the court shall also order the appropriate party to transmit the collateral materials to CDHS within two business days after the order for a competency evaluation, with a certificate of service of the collateral materials provided to the court and other necessary parties. If the parties are communicating with the court by electronic means and the order for a competency evaluation is issued by electronic means, CDHS shall accept the order by the same electronic means.

(II) If CDHS conducts the competency evaluation on an in-custody basis, CDHS shall begin the competency evaluation as soon as practicable, but shall complete the competency evaluation no later than twenty-one days after receiving the collateral materials and court order directing the competency evaluation be completed.

(III) If CDHS conducts the competency evaluation on an out-of-custody basis, CDHS shall complete the competency evaluation within forty-two days after receipt of the order and the collateral materials, unless the court extends the time upon a showing of good cause. 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 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) This subsection (1)(a) does not limit a person's ability to seek a court-ordered evaluation for a person with a mental health disorder or to initiate the procedure for an emergency mental health hold pursuant to section 27-65-106.

(b) (I) Notwithstanding subsection (1)(a) of this section, the court may order the defendant placed in CDHS's custody for the time necessary to conduct an inpatient competency evaluation if:

(A) CDHS provides a recommendation to the court, after consulting with the defendant and reviewing any clinical or collateral materials, that conducting the competency evaluation on an inpatient basis is clinically appropriate;

(B) The court finds that the competency evaluation and report provided by CDHS 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

(C) Extraordinary circumstances relating to the case or the defendant make conducting the competency evaluation on an inpatient basis necessary and appropriate.

(II) Upon entry of a court order pursuant to subsection (1)(b)(I) of this section, CDHS has the same authority with respect to custody as provided for in section 16-8-105.5 (4).

(III) When the court orders an inpatient competency evaluation, the court shall advise the defendant that restoration services may commence immediately if the competency evaluation opines that the defendant is incompetent to proceed, unless either party objects at the time of the advisement, or within seventy-two hours after receipt of the written report of the competency evaluation submitted to the court. The court shall record any objection to the order of commitment to CDHS.

(IV) When the court orders an inpatient competency 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) If the competency evaluator opines that the defendant is incompetent to proceed and that inpatient restoration services are not clinically appropriate, CDHS shall detail the outpatient restoration services available to the defendant.

(d) (I) If a defendant is in CDHS'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 competency evaluator has opined that:

(A) The defendant is competent to proceed, CDHS may return the defendant to a county jail or to the community, as determined by the defendant's bond status;

(B) 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, CDHS shall notify the court and the bridges court liaison by electronic means, and CDHS shall develop a discharge plan and a plan for community-based restoration services in coordination with the community restoration services provider.

(II) The court shall hold a hearing within seven days after receiving the notice pursuant to subsection (1)(d)(I)(B) of this section, at which CDHS 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. CDHS shall advise the defendant of the date and time of the court hearing. If CDHS 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 CDHS that the defendant's competency evaluation is completed. At the time CDHS notifies the sheriff, CDHS shall also notify the court and the bridges court liaison that CDHS is returning the defendant to the custody of the jail.

(e) This section does not restrict the right of the defendant to procure a competency evaluation at the defendant's request pursuant to section 16-8.5-111 (1).

(2) The defendant must 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 competency evaluation are protected as provided in section 16-8.5-107. 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 hearing, restorability hearing, 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 of the defendant's competency, it is permissible in the course of a competency evaluation pursuant to this section to use the defendant's confessions and admissions and any other evidence of the circumstances surrounding the commission of the offense, as well as the defendant's medical and social history, in questioning the defendant. When the defendant is noncooperative with the competency evaluator or personnel providing ancillary services, the competency evaluator may render an opinion of the defendant's competency based upon confessions, admissions, and any other evidence of the circumstances surrounding the commission of the offense, as well as the defendant's known medical and social history, and the opinion may be admissible into evidence at the defendant's competency or restoration hearing.

(4) The competency evaluator shall prepare a written report of the competency evaluation, and CDHS shall electronically deliver the report to the court as ordered using an e-filing system record in the matter. 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 are not 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 is not limited to, the information reviewed and relied upon in conducting the competency evaluation and specific tests conducted by the competency evaluator;

(c) The competency evaluator's opinion as to whether the defendant currently suffers from a mental disability or developmental disability, or both. If the opinion 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.

(d) The competency evaluator's opinion as to whether the defendant is competent to proceed or incompetent to proceed. If the opinion is that the defendant is incompetent to proceed, then the report must include:

(I) (A) The competency evaluator's opinion as to whether the defendant is restorable or unrestorable. As part of forming the opinion, the competency evaluator shall use due diligence in reviewing and summarizing any prior competency opinions regarding the defendant. If the opinion regarding restorability differs from opinions in past evaluations of the defendant, the competency evaluator shall explain the basis for the competency evaluator's differing opinions.

(B) The competency evaluator's opinion as to whether the defendant poses a substantial risk of serious harm to others, as defined in section 27-65-102, if the opinion is that the defendant is unrestorable and the defendant is either 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 the district attorney provided notice that the district attorney 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.

(C) If possible, when the defendant is diagnosed with a moderate to severe developmental disability or a neurocognitive disorder, as defined in section 25.5-10-501, which either alone or together with a co-occurring mental disability affects the defendant's ability to gain or maintain competency, and the opinion is that the defendant is restorable, the competency evaluator shall specifically state whether the competency evaluator believes there are unique or different services outside the standard competency restoration curriculum developed by CDHS that the defendant may need in order to be restored to competency within the reasonably foreseeable future.

(II) If the competency evaluator's opinion pursuant to subsection (5)(d)(I)(A) of this section is that the defendant is restorable, an opinion as to whether inpatient restoration services are clinically appropriate to restore the defendant to competency.

(e) The competency evaluator's opinion as to whether the defendant meets the criteria for a tier 1 or tier 2 designation; and

(f) 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 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 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 or 27-65-109, the competency evaluator is not required to request a petition for certification for short-term treatment of the defendant.

(III) Has an intellectual and developmental disability, as defined in section 25.5-10-202, and if the defendant does have an intellectual and developmental disability:

(A) Whether the defendant also has a mental health disorder, as defined in section 27-65-102, and, if the defendant does have a co-occurring intellectual and developmental disability and a mental health disorder, the primary diagnosis, if determinable; and

(B) 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; or

(IV) Has a neurocognitive disorder, as defined in section 25.5-10-501, and if the defendant does have a neurocognitive disorder, whether the defendant also has a mental health disorder, and whether the defendant may meet the criteria for protective placement pursuant to section 25.5-10-502. If the competency evaluator's 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.

(g) When the competency evaluator has reason to believe the defendant has a neurocognitive disorder, as defined in section 25.5-10-501, or a developmental disability:

(I) The competency evaluator's opinion as to whether diagnostic testing exists beyond what the competency evaluator can perform that is necessary to provide an opinion as to whether the defendant is incompetent to proceed or restorable; and

(II) The competency evaluator's opinion as to the defendant's primary diagnosis and prognosis.

(6) Whenever a competency evaluation is ordered upon the request of either party, the court shall notify the county attorney required to conduct proceedings pursuant to section 27-65-113.5 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 competency evaluation report.

(7) Each court shall allow for any competency evaluation conducted pursuant to this article 8.5 to be submitted to the court through electronic means, including through an e-filing system if the order for the competency evaluation is issued to CDHS through an e-filing system.

(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 the competency evaluator must not be held civilly liable for failure to predict violent behavior, except when 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.