C.R.S. § 16-8.5-113: Restorability hearing - burdens of proof - determination - dismissal.

(1) (a) The court may, upon motion of a party and upon a showing of good cause, set a restorability hearing within the time frame set forth in section 16-8.5-108 (1)(d).

(b) If the final determination made pursuant to section 16-8.5-103 is that the defendant is incompetent to proceed and a competency evaluator opines that the defendant is unrestorable, and either a restorability hearing has not been held or one hundred eighty-two days have passed since the defendant began receiving restoration services after a finding of restorability, the court shall, upon motion of a party, set a restorability hearing within the time frame set forth in section 16-8.5-108 (1)(d). A restorability hearing may be combined with a restoration hearing, if appropriate.

(c) If the court receives the competency evaluator's opinion that the defendant is unrestorable prior to entering an initial order for restoration services, the court shall set a restorability hearing within thirty-five days after receiving the opinion unless the time is extended by the court after a finding of good cause.

(2) At any restorability hearing conducted pursuant to this section:

(a) The defendant has the burden of proving by a preponderance of the evidence that the defendant is unrestorable if any charge in any of the defendant's pending criminal cases in the state of Colorado include a crime subject to the "Victim Rights Act", section 24-4.1-302 (1); unlawful sexual contact, as described in section 18-3-404; or indecent exposure, as described in section 18-7-302; and

(b) The prosecution has the burden of proving by a preponderance of the evidence that the defendant is restorable if the defendant does not have a pending criminal case in the state of Colorado that includes a charge of a crime subject to the "Victim Rights Act", section 24-4.1-302 (1); unlawful sexual contact, as described in section 18-3-404; or indecent exposure, as described in section 18-7-302.

(3) When determining whether the defendant is restorable or unrestorable, the court shall consider all relevant information, including, but not limited to:

(a) Any diagnosed mental disorder or developmental disability giving rise to the defendant's incompetency, including an intellectual and developmental disability, as defined in section 25.5-10-202, or neurocognitive disorder, as defined in section 25.5-10-501, and whether the diagnosed mental disorder or developmental disability can be treated, mitigated, or managed in a way that would allow the defendant to progress toward becoming competent to proceed;

(b) The nature and severity of the defendant's incompetency and whether the defendant's level of competency can be improved through any services the court may lawfully order, including services that are in addition to restoration services;

(c) The experiences, observations, and opinions of qualified experts, including medical professionals, treatment providers, and restoration specialists;

(d) The experiences, observations, and opinions of lay persons who are familiar with the defendant, including family members, friends, associates, and any other individual with whom the defendant has had significant interactions;

(e) The defendant's medical history, criminal history, competency and restoration history, and civil commitment history;

(f) The facts and context of current and past charges against the defendant as evidenced by police reports, video or audio recordings, physical evidence, witness or victim statements, and any other reliable sources;

(g) Any relevant statements made by the defendant during the restoration process; or

(h) The defendant's level of effort and engagement, including any volitional lack of cooperation or unwillingness to participate.

(4) (a) At the conclusion of a restorability hearing set pursuant to this section:

(I) If the court finds that the defendant has not met the burden of proving the defendant is unrestorable pursuant to subsection (2)(a) of this section, the court shall find the defendant restorable and order appropriate restoration services and set a review hearing pursuant to section 16-8.5-112.

(II) If the court finds that the defendant has met the burden of proving they are unrestorable pursuant to subsection (2)(a) of this section, the court shall find the defendant unrestorable.

(III) If the court finds that the prosecution has not met the burden of proving the defendant is restorable pursuant to subsection (2)(b) of this section, the court shall find the defendant unrestorable.

(IV) If the court finds that the prosecution has met the burden of proving the defendant is restorable pursuant to subsection (2)(b) of this section, the court shall find the defendant restorable and order appropriate restoration services and set a review hearing pursuant to section 16-8.5-112.

(b) If the court finds the defendant is unrestorable pursuant to subsection (4)(a)(II) or (4)(a)(III) of this section, the court shall order the dismissal of the criminal proceedings against the defendant and stay the order and proceed in accordance with section 16-8.5-117, unless the prosecution requests a civil commitment or enhanced protective placement, in which case the court shall proceed in accordance with section 16-8.5-118.

(5) This article 8.5 does not prohibit the court from finding that the defendant is restorable based on the defendant's volitional lack of cooperation or unwillingness to participate in restoration services if the court finds that the defendant could be restorable if the defendant cooperated and participated in the restoration services.