{"data":{"id":"us-co/c.r.s.-16-8.5-118","jurisdiction":"us-co","citation":"C.R.S. § 16-8.5-118","heading":"Civil commitment and enhanced protective placement for incompetent and unrestorable defendants - report - repeal.","body":"(1) (a) If the defendant is unrestorable pursuant to section 16-8.5-113 or the defendant has reached the maximum time permitted to restore the defendant pursuant to section 16-8.5-116, the prosecution may notify the court that the prosecution seeks civil commitment or enhanced protective placement of the defendant pursuant to this section.\n\n(b) If the prosecution verbally notifies the court pursuant to subsection (1)(a) of this section, the court shall order the prosecution to file written notice within seven days after the verbal notification and provide the notice to the parties, CDHS, and the county attorney. The notice must include the acts upon which the prosecution intends to rely upon at trial that the prosecution alleges satisfy subsection (6)(b) of this section. The prosecution shall not allege acts for which the defendant has been acquitted or convicted.\n\n(c) Upon the prosecution providing written notice to the court pursuant to subsection (1)(b) of this section, the court shall:\n\n(I) Stay the order dismissing the defendant's criminal case;\n\n(II) Set a trial within ninety-one days after the date the written notice was filed or, with both parties' consent, any date agreeable to the parties; and\n\n(III) Order CDHS to identify an appropriate provider and placement for the defendant in the event a civil commitment or an enhanced protective placement is granted and to keep the court informed in writing of available placement options.\n\n(2) At any time following the prosecution's written notice provided pursuant to subsection (1)(b) of this section and upon request of the defendant, the bridges court liaison, or CDHS, the court may appoint an emergency guardian pursuant to section 16-8.5-117 (2).\n\n(3) The court may continue the trial for good cause shown; except that the court shall commence the trial within one hundred eighty-two days after the date the prosecution gives notice pursuant to subsection (1) of this section and conclude the trial within a reasonable time. Delays attributable to the defendant, including a request for a continuance of the trial, must be excluded from the time limits set forth in this subsection (3). If the trial is not commenced within the time limits set forth in this subsection (3), the court shall end the stay and dismiss the case against the defendant if the defendant filed a motion to dismiss prior to the commencement of the trial. If the defendant failed to file a motion to dismiss prior to commencement of the trial, the failure to file a motion to dismiss is a waiver of the defendant's rights pursuant to this subsection (3).\n\n(4) (a) The trial must be civil in nature but conducted in accordance with the Colorado rules of evidence. A district court judge or, with the consent of both parties, a county court judge or a magistrate assigned by the chief judge of the judicial district shall serve as the finder of fact.\n\n(b) (I) Upon setting the trial, the court shall order, in writing, the exchange of relevant discovery for the purpose of ensuring a fair and expeditious trial for both parties, including, at a minimum, the timely disclosure of the witnesses and evidence the parties intend to rely upon at trial.\n\n(II) The court may order the parties to comply with relevant provisions of rule 16 of the Colorado rules of criminal procedure, but only to the extent reasonable for the civil trial and in furtherance of the limited purpose of this section.\n\n(c) The parties may issue subpoenas pursuant to rule 17 of the Colorado rules of criminal procedure to compel the attendance of witnesses at trial.\n\n(5) (a) The defendant may request to stipulate that the court order civil commitment or enhanced protective placement rather than contesting the matter at a trial. The court shall allow the defendant to stipulate to the court ordering a civil commitment or enhanced protective placement only if:\n\n(I) The court confirms the defendant has been fully advised of the consequences and the rights the defendant is waiving, including the right to a court trial;\n\n(II) The stipulation is in writing and stated on the record at a hearing at which the defendant appears, with the consent of any guardian that has been appointed;\n\n(III) The court finds the defendant understands the stipulation and that the stipulation is voluntary despite the defendant being incompetent to proceed; and\n\n(IV) The parties establish a factual basis.\n\n(b) Any stipulation or admission made as part of the stipulation to impose a civil commitment or enhanced protective placement is not admissible in any future criminal prosecution to prove any act alleged in the written notice seeking the civil commitment or enhanced protective placement.\n\n(6) At trial, the prosecution shall prove by clear and convincing evidence that:\n\n(a) The defendant has a mental disability or developmental disability;\n\n(b) (I) The defendant committed an act that, in the absence of any mental disability or developmental disability, would constitute:\n\n(A) Homicide pursuant to part 1 of article 3 of title 18;\n\n(B) A crime of violence, as defined in section 18-1.3-406 (2); or\n\n(C) A felony that constitutes unlawful sexual behavior, as defined in section 16-22-102; and\n\n(II) The act described in subsection (6)(b)(I) of this section that the defendant is alleged to have committed is or was charged in a criminal case in Colorado in which competency was raised; and\n\n(c) The defendant poses a substantial risk of serious harm to others.\n\n(7) (a) When determining whether the prosecution has met its burden pursuant to subsection (6)(b) of this section:\n\n(I) The defendant is not permitted to raise, and the court shall not consider, a defense based on a mental disability or developmental disability, including a mental disease or defect, as defined in section 16-8-102, including, but not limited to, a defense raised pursuant to article 8 of title 16 or any defense that is an element-negating traverse based on a mental disease or defect;\n\n(II) The defendant is not permitted to raise, and the court shall not consider, a defense of intoxication, as defined in section 18-1-804, except for intoxication that is not self-induced pursuant to section 18-1-804 (3); and\n\n(III) The defendant is permitted to raise other defenses that are not based on a mental disability or developmental disability, including affirmative defenses, except as provided in this subsection (7).\n\n(b) When determining whether to permit a defendant to raise a defense pursuant to this subsection (7), the court shall consider the need to ensure fairness and due process to both parties without frustrating the intended functioning and limited purpose of the civil proceeding.\n\n(c) The prosecution shall not allege, and the court shall not consider, an act or series of acts for which the defendant was acquitted or convicted as the qualifying acts satisfying the criteria listed in subsection (6)(b) of this section, but the court may admit evidence of an act or a series of acts for which the defendant was acquitted or convicted if otherwise admissible pursuant to the Colorado rules of evidence and relevant to the criteria listed in subsection (6)(a) or (6)(c) of this section.\n\n(d) (I) Prior to trial, the court shall find that the prosecution has met the requirements in subsection (6)(b)(II) of this section if an act alleged to satisfy the requirement of subsection (6)(b)(I) of this section is:\n\n(A) Charged in the current case; or\n\n(B) Charged in another pending case in the same jurisdiction and competency was raised in the case.\n\n(II) Prior to trial, the court may find that the prosecution has met the requirements in subsection (6)(b)(II) of this section if:\n\n(A) Without admitting to committing any acts, the defendant stipulates the defendant was charged with an act that meets the requirements of subsection (6)(b)(II) of this section; or\n\n(B) The prosecution files with the court certified court records from another criminal case, current or dismissed, that demonstrate by clear and convincing evidence that the requirements of subsection (6)(b)(II) of this section are satisfied.\n\n(8) (a) Prior to trial, the court shall require the defendant to state whether the defendant contests that the defendant has a mental disability or developmental disability.\n\n(b) If the defendant does not contest that the defendant has a mental disability or developmental disability, the court shall treat this fact as proven and shall not require the prosecution to produce any evidence to prove the fact at trial.\n\n(c) (I) If the defendant contests that the defendant has a mental disability or developmental disability, the court shall review the record and determine if the defendant or defense counsel raised the issue of the defendant being incompetent or failed to object to a finding that the defendant is incompetent.\n\n(II) If the court finds the defendant or defense counsel raised the issue of the defendant being incompetent or failed to object to a finding that the defendant is incompetent, the court shall find the defendant has previously stipulated that the defendant has a mental disability or developmental disability. If the court makes a finding, the court shall find the defendant has stipulated that the defendant has a mental disability or developmental disability and find in favor of the prosecution at trial with regard to subsection (6)(a) of this section.\n\n(III) If the court finds that the prosecution or court raised the issue of competency over the defendant's objection and the defendant consistently maintained an objection by arguing the defendant is competent to proceed, the prosecution has the burden to prove by clear and convincing evidence that the defendant has a mental disability or developmental disability pursuant to subsection (6)(a) of this section.\n\n(d) At trial, the court:\n\n(I) Shall admit any competency reports and any transcripts of prior competency or restorability hearings so long as the competency evaluator who completed the report is available for cross-examination;\n\n(II) May take judicial notice of any prior finding that the defendant is incompetent to proceed and the standard of proof to which the prior finding was made; and\n\n(III) Subject to constitutional limitations and the Colorado rules of evidence, shall allow admission of any evidence from prior court proceedings that bear on the question of whether the defendant has a mental disability or developmental disability.\n\n(9) At trial, when determining whether the defendant poses a substantial risk of serious harm to others, if the defendant is in custody or at the state hospital, the court shall assess the defendant as if the defendant were in the community. The court shall not find the defendant does not pose a substantial risk of serious harm to others merely because the defendant is in custody or at the state hospital.\n\n(10) If the court finds that the prosecution did not meet one or more of the requirements described in subsection (6) of this section, the court shall deny the prosecution's request to civilly commit or order the enhanced protective placement of the defendant and shall dismiss the defendant's case; except that the court may consider whether to order other civil proceedings pursuant to section 16-8.5-117.\n\n(11) (a) If the court finds that the prosecution met the requirements described in subsection (6) of this section, the court shall:\n\n(I) Order the civil commitment or enhanced protective placement of the defendant in accordance with subsection (12) of this section;\n\n(II) Place the defendant and issue any related orders pursuant to subsection (13) of this section; and\n\n(III) Transfer jurisdiction of the civil commitment or enhanced protective placement to an appropriate civil court with jurisdiction and dismiss the case in accordance with subsection (14) of this section.\n\n(b) The court has seventy days to place the defendant and transfer jurisdiction to the appropriate civil court; except that the court may extend the time limit with the consent of the defendant. The court shall order the placement and transfer jurisdiction as soon as practicable.\n\n(12) (a) If the court finds that the prosecution met the requirements described in subsection (6) of this section or if the court accepts the defendant's stipulation to civil commitment or enhanced protective placement, the court shall make a finding of the defendant's primary diagnosis that constitutes the mental disability or developmental disability. The court shall order the defendant civilly committed to the legal custody of CDHS and supervised pursuant to section 27-65-201, unless the defendant's primary diagnosis is an intellectual and developmental disability or a neurocognitive disorder, as those terms are defined in section 25.5-10-501, in which case, the court shall order an enhanced protective placement and legal custody of the defendant to the department of health care policy and financing and supervised pursuant to section 25.5-10-507. At any time prior to transferring jurisdiction to a civil court, the court may, upon a recommendation from CDHS, change the designation of the primary diagnosis and convert the order to civil commitment or enhanced protective placement, as appropriate, based on the determination of CDHS.\n\n(b) The court shall issue its findings and orders pursuant to this section in writing. When the court transfers jurisdiction to a civil court pursuant to section 27-65-113 or 25.5-10-509, the court shall send the civil court receiving jurisdiction all the written findings and orders entered pursuant to this section.\n\n(13) (a) When the court orders a civil commitment or enhanced protective placement, if CDHS proposes placing the defendant into inpatient care, the court shall order, without further court review, the defendant placed into inpatient care at the discretion of CDHS. If CDHS has identified an appropriate provider that does not meet the definition of inpatient care but is willing and able to accept placement of the defendant, the court shall set a review hearing as soon as practicable while ensuring the parties, any appointed emergency guardian, and victims are given sufficient notice and opportunity to prepare and appear.\n\n(b) When the court orders a civil commitment or enhanced protective placement, if CDHS has not identified an appropriate provider that is willing to accept placement of the defendant, the court shall:\n\n(I) Set a review hearing within thirty-five days after the order for civil commitment or enhanced protective placement; and\n\n(II) Prior to the review hearing, order CDHS, in consultation with the BHA, to identify at least one appropriate provider that is willing to immediately accept placement of the defendant.\n\n(c) At the review hearing, if CDHS proposes placing the defendant into inpatient care, the court shall order, without further court review, the defendant placed into inpatient care at the discretion of CDHS. If CDHS does not propose placing the defendant into inpatient care, the court shall review any placement identified by CDHS to ensure it is appropriate and sufficiently protects victims and the community from the substantial risk of serious harm to others posed by the defendant. The court may continue the review hearing or order an additional review hearing within the time frame set forth in subsection (11)(b) of this section.\n\n(d) When considering the appropriateness of the placement for the defendant, victims, and the community, the court shall:\n\n(I) Allow CDHS, the parties, and any appointed emergency guardian to be heard regarding the defendant's placement;\n\n(II) Give deference to CDHS's recommendation on any issue related to the defendant's primary diagnosis;\n\n(III) Give deference to CDHS and the opinion of a medical professional on the appropriateness of the provider and placement for the defendant;\n\n(IV) Not give deference to CDHS or a medical professional as to whether the placement sufficiently protects victims and the community from the substantial risk of serious harm to others posed by the defendant; and\n\n(V) Consider the totality of the circumstances, including:\n\n(A) The defendant's statements and whether the defendant lacks insight into the defendant's mental disability or developmental disability;\n\n(B) The defendant's clinical diagnosis and prognosis, including any opinions that the defendant and the defendant's current mental state and behaviors pose risks to others;\n\n(C) The defendant's refusal to voluntarily seek and comply with a treatment plan in the recent past, including in the defendant's most recent period of being in the community;\n\n(D) Recent overt acts by the defendant to threaten, cause, or attempt to cause harm to the defendant's self or others;\n\n(E) Any previous patterns of decompensation or deterioration that resulted in the defendant's hospitalization, arrest, or certification for short-term treatment and that demonstrate a risk of likely future decompensation;\n\n(F) When the defendant was last out of custody and whether the defendant was found in a condition in which the defendant was not able to care for the defendant's own basic needs in order to avoid the risk of serious physical harm;\n\n(G) The frequency, recency, and severity of the considerations described in subsections (13)(d)(V)(B) to (13)(d)(V)(F) of this section, such that the circumstances are present in a manner that requires inpatient treatment or that the circumstances are absent in a manner that allows for community-based placement;\n\n(H) Whether the defendant opposes the placement;\n\n(I) Whether community-based placement can be reasonably accommodated;\n\n(J) The limited resources of the state and the needs of others; and\n\n(K) The placement recommendations of any treating professionals.\n\n(e) The court shall not permit or order a defendant to be placed into a community-based setting outside of inpatient care unless:\n\n(I) Any victims have been notified of a critical stage, as defined in section 24-4.1-302 (2)(q.3), and given the opportunity to be heard; and\n\n(II) The district attorney in the case that sought civil commitment or enhanced protective placement has been notified and given an opportunity to object and be heard.\n\n(f) After reviewing the providers, if the court finds that multiple providers are appropriate for the defendant, victims, and the community, the court shall order the defendant be placed in the least-restrictive setting that is adequate to protect the victims and the community and to provide, to the greatest extent possible, the appropriate level of care for, treatment for, and supervision of the defendant. If more than one equally restrictive placement is available and appropriate, the court shall order the defendant be placed into a setting that is best suited for the defendant's treatment needs and supervision, as determined by CDHS.\n\n(g) If CDHS does not propose placing the defendant into inpatient care and CDHS has not identified any other appropriate placement with sufficient time to review and place the defendant within the time frame set forth in subsection (11)(b) of this section, the court shall order the defendant placed into inpatient care at the discretion of CDHS.\n\n(h) In addition to any orders issued pursuant to this section, the court shall issue any orders necessary to mitigate the defendant's risk to victims and the community, including ordering a provider that has accepted placement of the defendant to take reasonable and practicable protective measures to prevent the defendant from contacting any victims; except that the court shall not order the defendant to comply with any conditions that are not necessary to mitigate the defendant's risk or with which the defendant cannot comply.\n\n(i) After the court orders placement of the defendant:\n\n(I) The court, the district attorney, and CDHS shall transmit all necessary information, including the defendant's medical records, competency evaluations, materials used during the competency process, and restoration records, to the county attorney within three business days after the order for placement. The district attorney and CDHS shall provide additional necessary information upon request of the county attorney.\n\n(II) The court shall, unless other appropriate transportation has been approved by the court, order the sheriff to securely transport the defendant to the ordered placement as soon as practicable. The court shall set any review hearings necessary to ensure the defendant is transported to the initial placement. The court may delay transportation if a bed at a placement is not available but will be available within the next thirty days.\n\n(14) After the defendant has been transported to the placement ordered by the court, the court shall:\n\n(a) Transfer jurisdiction of the civil commitment to a civil court with jurisdiction pursuant to section 27-65-113 or transfer jurisdiction of the enhanced protective placement to a civil court with jurisdiction pursuant to section 25.5-10-507;\n\n(b) Notify CDHS and the county attorney; and\n\n(c) Dismiss the criminal case against the defendant. The court shall note in the court's final order dismissing the case that the charges may be refiled, but the prosecution is not precluded from refiling merely because the court did not state so in the order.\n\n(15) Subject to the applicable statute of limitations, including any applicable tolling provisions, the district attorney may refile the charges dismissed pursuant to this section at a later time if the district attorney has reason to believe the defendant has since attained competency.\n\n(16) If, at the time the district attorney seeks civil commitment or enhanced protective placement pursuant to this section, the defendant is already civilly committed or ordered to an enhanced protective placement in another case, the court shall:\n\n(a) Take judicial notice of the prior civil commitment or enhanced protective placement in lieu of conducting an additional trial;\n\n(b) Order a civil commitment or enhanced protective placement of the defendant in this case, commit the defendant to the legal custody of CDHS, order the defendant into the defendant's current placement, and transfer jurisdiction to civil court with jurisdiction over the existing civil commitment or enhanced protective placement;\n\n(c) Notify the civil court with jurisdiction over the existing civil commitment or enhanced protective placement and appropriate county attorney of the additional commitment order;\n\n(d) Order the district attorney and CDHS to transmit all necessary information to the county attorney, including the defendant's medical records, competency evaluations, materials used during the competency process, and restoration records. The district attorney and CDHS shall provide additional necessary information upon request of the county attorney.\n\n(e) Dismiss the criminal case against the defendant.\n\n(17) (a) No later than January 2031, CDHS shall include, as part of its presentation during its \"SMART Act\" hearing required by section 2-7-203, information concerning protective placements, enhanced protective placements, and civil commitments sought pursuant to this section. At a minimum, the presentation must include the following information from July 1, 2026, through July 1, 2030:\n\n(I) The number of petitions filed for protective placements, enhanced protective placements, and civil commitments;\n\n(II) The number of petitions that were granted for protective placements, enhanced protective placements, and civil commitments;\n\n(III) The average length of time and longest length of time a person was certified or placed under a protective placement, enhanced protective placement, and civil commitment;\n\n(IV) The number of people who had a placement other than inpatient care and the number of people who defaulted to placement in inpatient care; and\n\n(V) The average length of time and longest length of time a person was certified or placed under a protective placement, enhanced protective placement, and civil commitment and remained in jail.\n\n(b) HCPF and the judicial department shall provide any necessary information to assist CDHS in its presentation.\n\n(18) CDHS shall publicly post on CDHS's website the following information on a quarterly basis:\n\n(a) The actual and projected number of persons who are incompetent and unrestorable and who are or may be placed in CDHS's custody for a civil commitment or enhanced protective placement; and\n\n(b) The actual and projected costs that CDHS will or may incur for services related to CDHS's obligations pursuant to sections 27-65-201 and 25.5-10-507.\n\n(19) This section is repealed, effective July 1, 2031.","path":["Title 16 - CRIMINAL PROCEEDINGS","Article 8.5 - Competency to Proceed"],"source_url":"https://olls.info/crs/crs2026-title-16.htm","current_through":"Colorado Revised Statutes 2026","vintage":"","retrieved_at":"2026-09-14T18:37:45Z","sha256":"ebf2033c5f035c68a4ef3fc91248d0b44d0c2ba1e55c02ae2b80a609dfbc26cf","source_id":"us-co","stale":false,"prev":"us-co/c.r.s.-16-8.5-117","next":"us-co/c.r.s.-16-8.5-119"},"notice":"GroundRules: Original legal text. Not legal advice."}