16-8.5-105. 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. If the department conducts the evaluation on an in-custody basis, the department shall begin the evaluation as soon as practicable after the departments receipt of a court order directing the evaluation. After July 1, 2020, if the evaluation is conducted on an in-custody basis, the department shall complete the evaluation no later than twenty-one days after receipt of the order and the collateral materials. On and after July 1, 2020, if the evaluation is conducted on an out-of-custody basis, the department shall complete the evaluation within forty-two days after receipt of the order and collateral materials, unless the court extends the time upon a showing of good cause.
(II) At the time any evaluation is ordered, the court shall order that the collateral materials be transmitted to the department within twenty-four hours after the order by the appropriate party with a certificate of service of the materials provided to the court and other necessary parties by the party ordered to transmit the collateral materials.
(III) 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 the provisions of section 16-4-106 and any information provided by the court liaison hired pursuant to part 2 of article 11.9 of this title 16. As a condition of any bond, the court shall require the defendants cooperation with the competency evaluation on an outpatient and out-of-custody 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) Nothing in this subsection (1)(a) limits the availability of a court-ordered evaluation for a person with a mental health disorder pursuant to section 27-65-106 or invokes the emergency procedure set forth in section 27-65-105.
(b) Notwithstanding the provisions of subsection (1)(a) of this section, the court may order the defendant placed in the departments custody for the time necessary to conduct the inpatient competency evaluation if:
(I) The department provides a recommendation to the court, after consultation with the defendant and review of any clinical or collateral materials, that conducting the competency evaluation on an inpatient basis is clinically appropriate;
(II) The court finds that an inadequate competency evaluation and report has been completed or that two or more conflicting competency evaluations and reports have been completed, and the court finds that an inpatient evaluation is necessary; or
(III) Extraordinary circumstances relating to the case or the defendant make conducting the competency evaluation on an inpatient basis necessary and appropriate.
(IV) and (V)(Deleted by amendment, L. 2019.)
(b.3) Upon entry of a court order pursuant to subsection (1)(b) of this section, the department has the same authority with respect to custody as provided for in section 16-8-105.5 (4).
(b.5) When the court orders an inpatient evaluation, the court shall advise the defendant that restoration services may commence immediately if the evaluation concludes that the defendant is incompetent to proceed, unless either party objects at the time of the advisement, or within seventy-two hours after the receipt of the written evaluation submitted to the court. The court shall record any objection to the order of commitment to the department.
(b.7) On and after July 1, 2020, when the court orders an inpatient 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) (Deleted by amendment, L. 2019.)
(d) If a defendant is in the departments custody for purposes of the competency evaluation ordered pursuant to this article 8.5 and the defendant has completed the competency evaluation and the evaluator has concluded that the defendant is competent to proceed, the department may return the defendant to a county jail or to the community, as determined by the defendants bond status. If the evaluator has concluded that 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, the department shall notify the court and the court liaison, and the department shall develop a discharge plan and a plan for community-based restoration services in coordination with the community restoration services provider. The court shall hold a hearing within seven days after receiving the notice, at which the department 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 his or her bond status. The department shall advise the defendant of the date and time of the court hearing. If the department 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 the department that the defendants evaluation is completed. At the time the department notifies the sheriff, the department shall also notify the court and the court liaison that the department is returning the defendant to the custody of the jail.
(e) Nothing in this section restricts the right of the defendant to procure a competency evaluation as provided in section 16-8.5-106.
(2) The defendant shall 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 evaluation shall be protected as provided in section 16-8.5-108. 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 defendants noncooperation with the competency evaluator and other personnel providing ancillary services may be admissible in the defendants competency or restoration hearing to rebut any evidence introduced by the defendant with regard to the defendants competency.
(3) To aid in forming an opinion as to the competency of the defendant, it is permissible in the course of an evaluation under this section to use confessions and admissions of the defendant and any other evidence of the circumstances surrounding the commission of the offense, as well as the medical and social history of the defendant, in questioning the defendant. When the defendant is noncooperative with the competency evaluator or personnel providing ancillary services, an opinion of the competency of the defendant may be rendered by the competency evaluator based upon confessions, admissions, and any other evidence of the circumstances surrounding the commission of the offense, as well as the known medical and social history of the defendant, and the opinion may be admissible into evidence at the defendants competency or restoration hearing.
(4) A written report of the evaluation shall be prepared in triplicate and delivered to the clerk of the court that ordered it. The clerk shall provide a copy of the report both to the prosecuting attorney and the counsel for the defendant.
(5) On and after July 1, 2020, the competency evaluation and report must include but need not be 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 need not be limited to the information reviewed and relied upon in conducting the competency evaluation and specific tests conducted by the competency evaluator;
(c) A diagnosis and prognosis of the defendants mental disability or developmental disability;
(d) An opinion as to whether the defendant suffers from a mental disability or developmental disability;
(e) An opinion as to whether the defendant is competent to proceed. If the opinion of the competency evaluator is that the defendant is incompetent to proceed, then:
(I) (A) If possible, an opinion as to whether there is a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future;
(B) When, pursuant to the requirements of subsection (5)(f) of this section, the evaluator is aware that any court within the previous five years has found the defendant is incompetent to proceed and there is a substantial probability that with restoration services the defendant will not attain competency within the reasonably foreseeable future, the evaluator shall provide an opinion regarding the probability of restoration pursuant to this subsection (5)(e)(I) and, when the opinion is that there is a substantial probability of attaining competency within the reasonably foreseeable future, the evaluator shall state why the defendants circumstances are different from the prior courts finding;
(C) When the defendant is diagnosed with a moderate to severe intellectual or developmental disability, acquired or traumatic brain injury, or dementia, which either alone or together with a co-occurring mental illness affects the defendants ability to gain or maintain competency, the evaluator shall provide an opinion as to whether there is a substantial probability that the defendant with restoration services will attain competency within the reasonably foreseeable future. When the opinion is that there is a substantial probability of attaining competency, the evaluator shall specifically state whether the evaluator believes there are unique or different services outside the standard competency restoration curriculum developed by the department that the defendant may need in order to be restored to competency within the reasonably foreseeable future.
(D) When the defendant has been found incompetent to proceed pursuant to section 16-8.5-103 three or more times over the previous three years in the current case or any other case, even if the defendant is later restored, the evaluator shall specifically identify those instances of findings of incompetency as a part of the review required pursuant to subsection (5)(f) of this section. The evaluator shall provide an opinion as to whether there is a substantial probability that the defendant with restoration services will attain competency within the reasonably foreseeable future and maintain competency throughout the case.
(II) A recommendation as to whether inpatient restoration services are clinically appropriate to restore the defendant to competency. If inpatient restoration services are not clinically appropriate, the department must detail the outpatient and out-of-custody restoration services available to the defendant. For evaluation reports filed on or after January 1, 2021, the recommendations must be based upon the restoration placement guideline developed pursuant to section 16-8.5-121, prior to its repeal.
(f) If available within the records of the department, a description of all competency evaluations or restoration services that were previously provided to the defendant, including a list of recent voluntary or involuntary medications administered or administered through a forced medication order;
(g) The competency evaluators opinion as to whether the defendant meets the criteria for a tier I or tier II designation, as defined in section 16-8.5-101 (19) and (20); and
(h) The competency evaluators opinion as to whether the defendant meets the criteria for certification pursuant to article 65 of title 27 or whether the defendant is eligible for services pursuant to article 10 of title 25.5 or article 10.5 of title 27, including the factors considered in making either determination.
(6) Whenever a competency evaluation is ordered upon the request of either party, the court may notify the county attorney or district attorney required to conduct proceedings pursuant to section 27-65-111 (6) for the county in which the charges are pending and the court liaison hired pursuant to part 2 of article 11.9 of this title 16 of all court dates for return of the report on competency to ensure that all parties are on notice of the expected need for coordinated services and planning with consideration of possible civil certification.
(7) Each court shall allow for any competency evaluation conducted pursuant to the provisions of this section or section 16-8.5-106 to be submitted to the court through electronic means.
(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 any competency evaluator must not be held civilly liable for failure to predict such violent behavior, except where 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.
Source: L. 2008: Entire article added, p. 1842, 2, effective July 1. L. 2016: (1) amended, (HB 16-1410), ch. 151, p. 450, 1, effective July 1. L. 2019: (1) and (5) amended and (6), (7), and (8) added, (SB 19-223), ch. 227, p. 2276, 4, effective July 1. L. 2020: (5)(e)(I) amended, (SB 20-181), ch. 144, p. 624, 1, effective June 29; (6) amended, (SB 20-136), ch. 70, p. 283, 7, effective September 14.
Cross references: For the legislative declaration in SB 20-136, see section 1 of chapter 70, Session Laws of Colorado 2020.
Upon receiving an incomplete second evaluation, a court should order that (1) the evaluator render an opinion based on the available information, if possible, despite the defendants noncooperation or (2) the defendant be returned to the appropriate facility for further observation so that a competency opinion can be rendered. People v. Presson, 2013 COA 120M, 315 P.3d 198.
Court erred in proceeding to determine defendants competency to stand trial when the second competency evaluation did not contain the statutorily required diagnosis, prognosis, and opinion, and the court declined to return defendant to the facility to complete the evaluation. People v. Presson, 2013 COA 120M, 315 P.3d 198.
The error was not harmless because defendant was unfairly deprived of a second contemporaneous evaluation, to which defendant was statutorily entitled; the court explicitly relied on defendants refusal to cooperate with the second evaluator in finding defendant competent; evidence of defendants competency was not overwhelming; and a retrospective competency determination would not cure the error. People v. Presson, 2013 COA 120M, 315 P.3d 198.