C.R.S. § 16-8.5-109: Competency hearing - procedure after determination of competency or incompetency - mandatory dismissal - refile of charges.

(1) Competency hearing.

(a) If a party makes a timely request for a competency hearing pursuant to section 16-8.5-108, the court shall grant the request for a competency hearing.

(b) At a competency hearing, the party asserting the incompetency of the defendant has the burden of submitting evidence and the burden of proof by a preponderance of the evidence.

(2) Competent to proceed. If the final determination made pursuant to section 16-8.5-103 is that the defendant is competent to proceed, the court shall order that the suspended proceeding continue or, if a mistrial was declared, shall reset the case for trial at the earliest possible date.

(3) Referral to wraparound care program or restoration services. 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, except as provided in subsection (4) of this section, the court may order restoration services pursuant to section 16-8.5-110.

(4) Mandatory dismissal of certain charges after finding of incompetency. The court shall dismiss the charges against the defendant 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; a traffic infraction; a misdemeanor traffic offense; an offense that constitutes an unclassified misdemeanor without specification pursuant to section 18-1.3-504; or an offense that constitutes a denominated misdemeanor and no penalty is fixed in statute pursuant to section 18-1.3-505, but not a misdemeanor pursuant to part 13 of article 4 of title 42 or any offense charged pursuant to section 42-4-1402 (2)(c).