Second Regular Session
Seventy-third General Assembly
STATE OF COLORADO
INTRODUCED
LLS NO. 22-1024.01 Michael Dohr x4347
HOUSE BILL 22-1386
House Committees Senate Committees
Judiciary
A BILL FOR AN ACT
C
ONCERNING MEASURES RELATED TO COMPETENCY TO PROCEED .101
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov
.)
Under current law in a dispute over a defendant's competency, a
party may request a second evaluation of the defendant. The bill requires
that if a second evaluation is completed and restoration is ordered, the
court shall make the second evaluation available to the department of
human services (department).
The bill permits a defendant to be placed in the department's
custody for an inpatient competency evaluation if the court finds the
competency report provided by the department does not meet statutory
HOUSE SPONSORSHIP
Amabile and Soper,
SENATE SPONSORSHIP
Hansen and Gardner,
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing statute.
Dashes through the words indicate deletions from existing statute. requirements.
For a defendant whose highest charge is a misdemeanor, with
some exceptions, the bill requires the court to order outpatient restoration
services and grant the defendant a personal recognizance bond unless the
defendant meets certification criteria or the court finds by clear and
convincing evidence that extraordinary circumstances exist that make
release inappropriate and that inpatient restoration services are
appropriate.
If the defendant is in custody and the recommendation is that
inpatient restoration services are not clinically appropriate to restore the
defendant to competency, the bill directs the court to consider releasing
the defendant on bond. The bill limits outpatient restoration services to a
defendant or juvenile who is a resident of Colorado and requires the
services be provided in Colorado.
The bill eliminates the requirement to opine on whether there is a
substantial probability that the defendant will be restored to competency
and remain competent with the use of medication or not remain
competent without the use of forced medication.
After the court has conducted at least 4 competency reviews, the
bill requires the court to conduct a competency review every 91 days. The
bill requires the court to dismiss the defendant's case if there is not a
substantial probability that the defendant will be restored to competency
in the reasonably foreseeable future.
Under current law when a court determines that an adult defendant
is incompetent to proceed and orders the defendant to undergo restoration
treatment, any claim of privilege or confidentiality by the defendant is
deemed waived. The bill creates the same waiver for a juvenile defendant
who is determined to be incompetent to proceed and is ordered to undergo
restoration treatment. A court may order a restoration progress review
hearing for a juvenile defendant at any time on the motion of any party or
the court. The bill requires that when a court orders a restoration to
competency evaluation for a juvenile that the evaluation be completed by
the department.
Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. In Colorado Revised Statutes, 16-8.5-103, amend2
(4) as follows:3
16-8.5-103. Determination of competency to proceed. (4) If a4
party requests a second evaluation, any pending requests for a hearing5
must be continued until the receipt of the second evaluation report. The6
HB22-1386-2- report of the expert conducting the second evaluation must be completed1
and filed with the court within thirty-five days after the court order2
allowing the second evaluation, unless the time period is extended by the3
court for good cause. I
F A SECOND EVALUATION IS COMPLETED AND4
RESTORATION IS ULTIMATELY ORDERED , THEN THE COURT SHALL MAKE5
THE SECOND EVALUATION AVAILABLE TO THE DEPARTMENT . If the second6
evaluation is requested by the court, it must be paid for by the court.7
SECTION 2. In Colorado Revised Statutes, 16-8.5-105, amend8
(1)(b)(II) as follows:9
16-8.5-105. Evaluations, locations, time frames, and report.10
(1) (b) Notwithstanding the provisions of subsection (1)(a) of this11
section, the court may order the defendant placed in the department's12
custody for the time necessary to conduct the inpatient competency13
evaluation if:14
(II) The court finds that an inadequate
THE competency evaluation15
and report has been completed PROVIDED BY THE DEPARTMENT IS16
INSUFFICIENT BECAUSE IT DOES NOT MEET STATUTORY REQUIREMENTS17
PURSUANT TO SUBSECTION (5) OF THIS SECTION or that two or more18
conflicting competency evaluations and reports have been completed; and19
the court finds that an inpatient evaluation is necessary; or20
SECTION 3. In Colorado Revised Statutes, 16-8.5-111, amend21
(2)(b), (2)(d), (2)(f)(I), (2)(f)(II)(A), and (2)(h)(I)(B); and add (2)(i) as22
follows:23
16-8.5-111. Procedure after determination of competency or24
incompetency. (2) If the final determination made pursuant to section25
16-8.5-103 is that the defendant is incompetent to proceed, the court has26
the following options:27
HB22-1386
-3- (b) (I) If the defendant is on bond or summons, the court shall1
order that restoration to competency take place on an outpatient basis,2
unless the department recommends inpatient restoration services pursuant3
to section 16-8.5-105 (5)(e)(II).4
(II) F
OR A DEFENDANT WHOSE HIGHEST CHARGE IS A5
MISDEMEANOR, EXCEPT FOR THE MISDEMEANORS IDENTIFIED IN THIS6
SUBSECTION (2)(b)(II), THE COURT SHALL ORDER OUTPATIENT7
RESTORATION SERVICES AND SHALL GRANT THE DEFENDANT A PERSONAL8
RECOGNIZANCE BOND, UNLESS THE DEFENDANT MEETS THE CERTIFICATION9
CRITERIA PURSUANT TO ARTICLE 65 OF TITLE 27 OR THE COURT FINDS BY10
CLEAR AND CONVINCING EVIDENCE THAT EXTRAORDINARY11
CIRCUMSTANCES EXIST THAT MAKE RELEASE INAPPROPRIATE AND THAT12
INPATIENT RESTORATION SERVICES ARE APPROPRIATE . THIS SUBSECTION13
(2)(b)(II)
DOES NOT APPLY TO THE FOLLOWING MISDEMEANORS :14
(A) A
SSAULT IN THE THIRD DEGREE, AS DESCRIBED IN SECTION15
18-3-204;16
(B) U
NLAWFUL SEXUAL CONTACT , AS DESCRIBED IN SECTION17
18-3-404;18
(C) C
HILD ABUSE, AS DESCRIBED IN SECTION 18-6-401 (7)(a)(V);19
(D) A
LL VIOLATIONS OF A PROTECTION ORDER , AS DESCRIBED IN20
SECTION 18-6-803.5;21
(E) M
ISDEMEANOR FAILURE TO REGISTER AS A SEX OFFENDER , AS22
DESCRIBED IN SECTION 18-3-412.5;23
(F) M
ISDEMEANOR INVASION OF PRIVACY FOR SEXUAL24
GRATIFICATION, AS DESCRIBED IN SECTION 18-3-405.6;25
(G) F
ALSE REPORTING OF AN EMERGENCY , AS DESCRIBED IN26
SECTION 18-8-111; AND27
HB22-1386
-4- (H) INTERFERENCE WITH A SCHOOL - CREDIBLE THREAT TO USE A1
DEADLY WEAPON, AS DESCRIBED IN SECTION 18-9-109 (6).2
(II) (III) (A) If the defendant is in custody and the3
recommendation is for outpatient restoration services THAT INPATIENT4
RESTORATION SERVICES ARE NOT CLINICALLY APPROPRIATE TO RESTORE5
THE DEFENDANT TO COMPETENCY , the court shall consider the release of6
the defendant on bond consistent with article 4 of this title 16 and the7
Colorado rules of criminal procedure.8
(B) As a condition of bond, the court shall order that the9
restoration take place on an outpatient basis. Pursuant to section10
27-60-105, the department, through the office of behavioral health, is the11
entity responsible for the oversight of restoration education and12
coordination of all competency restoration services. As a condition of13
release for outpatient restoration services, the court may require pretrial14
services, if available, to work with the department and the restoration15
services provider under contract with the department to assist in securing16
appropriate support and care management services, which may include17
housing resources. The individual agency responsible for providing18
outpatient restoration services for the defendant shall notify the court or19
other designated agency within twenty-one days if restoration services20
have not commenced.21
(C) When the defendant is in custody on a misdemeanor, petty22
offense, or traffic offense, the court, within seven days of the defendant23
being found incompetent to proceed, shall set a hearing on bond. At the24
bond hearing there is a presumption that the court shall order a personal25
recognizance bond. If the court does not order a personal recognizance26
bond and the defendant is committed for inpatient restoration, the court27
HB22-1386
-5- must SHALL make findings of fact that extraordinary circumstances exist1
to overcome the presumption of a release and the clinical2
recommendation for outpatient treatment THAT INPATIENT RESTORATION3
SERVICES ARE NOT APPROPRIATE by clear and convincing evidence.4
(d) If the court has ordered outpatient restoration services and the5
department determines that it is unable, within a reasonable time, to6
provide restoration services on an outpatient basis, the department shall7
notify the court within fourteen days after its determination, at which8
point the court shall review the case and determine what interim mental9
health services can be provided within the community by the department10
or other community provider. I
F A COURT LIAISON IS APPOINTED, the11
department shall report to the court liaison every ten
TWENTY-EIGHT days12
thereafter concerning the availability of restoration services on an13
outpatient basis.14
(f) (I) If the court has ordered inpatient restoration services, the15
department shall provide restoration services at an appropriate inpatient16
restoration services program. On and after July 1, 2019, the department17
shall offer tier 1 defendants admission for restoration services within18
seven days after receipt of the court order and collateral materials. On and19
after July 1, 2021, the department shall offer admission to tier 220
defendants within twenty-eight days after receipt of the court order and21
collateral materials. For tier 2 defendants, the department shall advise the22
court and,
IF A COURT LIAISON IS APPOINTED, the court liaison every ten
23
TWENTY-EIGHT days after the initial twenty-eight day period regarding the24
availability of a bed and when admission will be offered.25
(II) If the defendant is not offered admission and transported to26
the inpatient restoration services program within the time frames provided27
HB22-1386
-6- or in accordance with other court orders, the court may:1
(A) Review the case for consideration of outpatient restoration2
services and appropriate and necessary case management services3
coordinated with the department;
IF A COURT LIAISON IS APPOINTED, the4
court liaison; and pretrial services, if available; or5
(h) (I) If the defendant is receiving inpatient restoration services6
and the executive director concludes that community-based restoration7
services would be more clinically appropriate, the department shall:8
(B) Provide to the court information regarding the appropriate9
outpatient restoration services, developed in conjunction with the court10
liaison,
WHEN ASSIGNED, and the reasons why the defendant could be11
properly restored to competency on an outpatient basis.12
(i) A
COURT MAY ONLY ORDER OUTPATIENT RESTORATION13
SERVICES FOR A DEFENDANT WHO IS A RESIDENT OF COLORADO, AND THE14
SERVICES MUST BE PROVIDED WITHIN THE STATE OF COLORADO.15
SECTION 4. In Colorado Revised Statutes, 16-8.5-116, amend16
(2)(a), (4), (5), (6) introductory portion, (7)(a)(III), (8)(a)(III), (9)(a), and17
(10); and repeal (2)(b)(VI) as follows:18
16-8.5-116. Certification - reviews - termination of19
proceedings - rules. (2) (a) Within ninety-one days after the entry of the20
court's order of commitment
OR ORDER TO RECEIVE OUTPATIENT21
RESTORATION, the court shall review the case of a defendant who has22
been determined to be incompetent to proceed with regard to the23
probability that the defendant will eventually
be restored to competency24
WITHIN THE REASONABLY FORESEEABLE FUTURE and with regard to the25
justification for certification, or confinement, OR CONTINUED26
RESTORATION TREATMENT . The review may be held in conjunction with27
HB22-1386
-7- a restoration hearing held pursuant to section 16-8.5-113. However, if at1
the review hearing, there is a request by the defendant for a restoration2
hearing pursuant to section 16-8.5-113, the court shall set the restoration3
hearing within thirty-five days after the request pursuant to the provisions4
of section 16-8.5-113.5
(b) On and after July 1, 2020, at least ten days before each review,6
the individual or entity evaluating the defendant shall provide the court7
with a report describing:8
(VI) Whether there is a substantial probability that the defendant9
will be restored to competency and remain competent with the use of10
medications or will not remain competent without the use of forced11
medication;12
(4) After the fourth review, the court shall review the competency13
of the defendant every sixty-three NINETY-ONE days until the defendant14
is restored to competency or the court determines, based on available15
evidence, that there is not a substantial probability that the defendant will16
be restored to competency in the
REASONABLY foreseeable future. and in
17
that case. IF THE COURT DETERMINES BASED ON AVAILABLE EVIDENCE18
THERE IS NOT A SUBSTANTIAL PROBABILITY THAT THE DEFENDANT WILL BE19
RESTORED TO COMPETENCY IN TH E REASONABLY FORESEEABLE FUTURE ,20
the court shall dismiss the case
SUBJECT TO THE PROVISIONS OF21
SUBSECTION (10) OF THIS SECTION.22
(5) The court shall forward a copy of each report and summary23
received pursuant to subsections (2), (3), and (4) of this section to the24
county attorney or district attorney required to conduct proceedings25
pursuant to section 27-65-111 (6) for the county in which the case is26
pending and,
WHEN A COURT LIAISON IS APPOINTED, to the court liaison.27
HB22-1386
-8- (6) Notwithstanding the time periods provided in subsections (7),1
(8), and (9) of this section and to ensure compliance with relevant2
constitutional principles, for any offense for which the defendant remains3
confined as a result of a determination of incompetency to proceed IS4
ORDERED TO RECEIVE COMPETENCY RESTORATION SERVICES IN AN5
INPATIENT OR OUTPATIENT SETTING , if the court determines, based on6
available evidence, that there is not a substantial probability that the7
defendant will be restored to competency within the reasonably8
foreseeable future, the court may order the defendant's release from9
commitment pursuant to this article 8.5 through one or more of the10
following means:11
(7) At any review hearing held concerning the defendant's12
competency to proceed, the court shall dismiss the charges against the13
defendant and release the defendant from confinement, subject to the14
provisions of subsection (10) of this section, if:15
(a) The defendant:16
(III) Has
BEEN ORDERED TO RECEIVE AND received competency17
restoration services while committed or otherwise confined for an18
aggregate time of six months; and19
(8) At any review hearing held concerning the defendant's20
competency to proceed, the court shall dismiss the charges against the21
defendant and release the defendant from confinement, subject to the22
provisions of subsection (10) of this section, if:23
(a) The defendant:24
(III) Has
BEEN ORDERED TO RECEIVE AND received competency25
restoration services while committed or otherwise confined for an26
aggregate time of one year; and27
HB22-1386
-9- (9) If the defendant is charged with any other felony offense1
except a class 1, 2, or 3 felony offense; a sex offense as defined in section2
18-1.3-1003 (5); a crime of violence as defined in section 18-1.3-406 (2);3
or a level 1 or level 2 drug felony, and has been committed to the custody4
of the department or otherwise confined as a result of a determination of5
incompetency to proceed, the following provisions apply:6
(a) If the defendant has
BEEN ORDERED TO RECEIVE AND HAS7
received competency restoration services while committed or otherwise8
confined for an aggregate time of two years and the court determines,9
based on available evidence, that the defendant is not restored to10
competency, then the court shall dismiss the charges against the11
defendant, subject to the provisions of subsection (10) of this section,12
unless any party objects to dismissal.13
(10) Prior to the dismissal of charges pursuant to subsection (1),14
(4), (6), (7), (8), or (9) of this section, the court shall identify whether the15
defendant meets the requirements for certification pursuant to article 6516
of title 27, or for the provision of services pursuant to article 10.5 of title17
27, or whether the defendant will agree to a voluntary commitment. If the18
court finds the requirements for certification or provision of services are19
met or the defendant does not agree to a voluntary commitment, the court20
may stay the dismissal for twenty-one days and notify the department and21
county attorney or district attorney required to conduct proceedings22
pursuant to section 27-65-111 (6) in the relevant jurisdiction of the23
pending dismissal so as to provide the department and the county attorney24
or district attorney with the opportunity to pursue certification25
proceedings or the provision of necessary services.26
SECTION 5. In Colorado Revised Statutes, add 19-2.5-701.5 and27
HB22-1386
-10- 19-2.5-703.5 as follows:1
19-2.5-701.5. Definitions. A
S USED IN THIS PART 7, UNLESS THE2
CONTEXT OTHERWISE REQUIRES :3
(1) "C
OMPETENCY EVALUATOR " MEANS AN INDIVIDUAL WITH THE4
QUALIFICATIONS DESCRIBED IN SECTION 19-2.5-703 (4)(b).5
(2) "D
EPARTMENT" MEANS THE DEPARTMENT OF HUMAN SERVICES .6
(3) "I
NITIAL COMPETENCY HEARING " MEANS A HEARING TO7
DETERMINE WHETHER A JUVENILE IS COMPETENT TO PROCEED .8
(4) "R
ESTORATION PROGRESS REVIEW HEARING " MEANS A9
HEARING IN WHICH THE JUVENILE 'S PROGRESS IN RESTORATION TO10
COMPETENCY EDUCATION AND OTHER APPLICABLE SERVICES IS REVIEWED ,11
BASED ON RESTORATION EDUCATION AND TREATMENT RECORDS AND ANY12
PRIOR COMPETENCY EVALUATION REPORTS .13
(5) "R
ESTORATION TO COMPETENCY EVALUATION " MEANS AN14
EVALUATION CONDUCTED BY AN EVALUATOR WITH QUALIFICATIONS15
DESCRIBED IN SECTION 19-2.5-703 (4)(b) TO DETERMINE IF THE JUVENILE16
HAS ACHIEVED OR BEEN RESTORED TO COMPETENCY .17
19-2.5-703.5. Waiver of privilege. (1) W
HEN THE COURT18
DETERMINES THAT THE JUVENILE IS INCOMPETENT TO PROCEED AND19
ORDERS THAT THE JUVENILE DEFENDANT UNDERGO RESTORATION20
TREATMENT, ANY CLAIM BY THE JUVENILE OR LEGAL GUARDIAN AS21
APPROPRIATE TO CONFIDENTIALITY OR PRIVILEGE IS DEEMED WAIVED , AND22
THE DISTRICT ATTORNEY, THE DEFENSE ATTORNEY, AND THE COURT ARE23
GRANTED ACCESS, WITHOUT WRITTEN CONSENT OF THE JUVENILE OR24
FURTHER ORDER OF THE COURT , TO:25
(a) R
EPORTS OF COMPETENCY AND RESTORATION TO COMPETENCY26
EVALUATIONS, INCLUDING SECOND OPINION EVALUATIONS AND27
HB22-1386
-11- RESTORATION EDUCATION REPORTS ;1
(b) I
NFORMATION AND DOCUMENTS RELATING TO THE2
COMPETENCY EVALUATION THAT ARE CREATED BY , OBTAINED BY,3
REVIEWED BY, OR RELIED ON BY AN EVALUATOR PERFORMING A4
COURT-ORDERED EVALUATION; AND5
(c) T
HE EVALUATOR, FOR THE PURPOSE OF DISCUSSING THE6
COMPETENCY EVALUATION .7
(2) U
PON A REQUEST BY EITHER PARTY OR THE COURT FOR THE8
INFORMATION DESCRIBED IN SUBSECTION (1) OF THIS SECTION, THE9
EVALUATOR OR TREATMENT PROVIDER SHALL PROVIDE THE INFORMATION10
FOR USE IN PREPARING FOR A HEARING ON COMPETENCY OR RESTORATION11
AND FOR USE DURING SUCH A HEARING .12
(3) A
N EVALUATOR OR A FACILITY PROVIDING COMPETENCY13
EVALUATION OR RESTORATION TREATMENT SERVICES PURSUANT TO A14
COURT ORDER ISSUED PURSUANT TO THIS ARTICLE 2.5 SHALL PROVIDE,15
PROCEDURAL INFORMATION TO THE COURT , DISTRICT ATTORNEY, OR16
DEFENSE COUNSEL, CONCERNING THE JUVENILE 'S LOCATION, THE17
JUVENILE'S HOSPITAL OR FACILITY ADMISSION STATUS , THE STATUS OF18
EVALUATION PROCEDURES , AND OTHER PROCEDURAL INFORMATION19
RELEVANT TO THE CASE.20
(4) N
OTHING IN THIS SECTION LIMITS THE COURT 'S ABILITY TO21
ORDER THAT INFORMATION IN ADDITION TO THAT SET FORTH IN22
SUBSECTIONS (1) AND (3) OF THIS SECTION BE PROVIDED TO THE23
EVALUATOR, OR TO EITHER PARTY TO THE CASE, NOR DOES IT LIMIT THE24
INFORMATION THAT IS AVAILABLE AFTER THE WRITTEN CONSENT OF THE25
JUVENILE, PARENT, OR LEGAL GUARDIAN.26
(5) T
HE COURT SHALL ORDER BOTH THE PROSECUTOR AND THE27
HB22-1386
-12- JUVENILE'S COUNSEL TO EXCHANGE THE NAMES , ADDRESSES, REPORTS,1
AND STATEMENTS OF EACH PHYSICIAN OR PSYCHOLOGIST WHO HAS2
EXAMINED OR TREATED THE JUVENILE FOR COMPETENCY .3
(6) E
VIDENCE OBTAINED DURING A COMPETENCY EVALUATION OR4
DURING TREATMENT RELATED TO THE JUVENILE 'S COMPETENCY OR5
INCOMPETENCY AND THE DETERMINATION AS TO THE JUVENILE 'S6
COMPETENCY OR INCOMPETENCY IS NOT ADMISSIBLE ON THE ISSUES7
RAISED BY A PLEA OF NOT GUILTY.8
SECTION 6. In Colorado Revised Statutes, 19-2.5-705, amend9
(1); and add (4) as follows:10
19-2.5-705. Restoration progress review hearing and11
restoration to competency hearing. (1) The court may order a
12
restoration to competency hearing, as defined in section 19-2.5-102, at13
any time on its own motion, on motion of the prosecuting attorney, or on14
motion of the juvenile. The court shall order a restoration of competency15
hearing if a competency evaluator with the qualifications described in16
section 19-2.5-703 (4)(b) files a report certifying that the juvenile is17
competent to proceed THE COURT MAY ORDER A RESTORATION PROGRESS18
REVIEW HEARING AT ANY TIME ON ITS OWN MOTION OR ON MOTION OF THE19
PROSECUTING ATTORNEY OR THE JUVENILE . IF, DURING A RESTORATION20
PROGRESS REVIEW HEARING, THE COURT MAKES A DETERMINATION THAT21
A RESTORATION TO COMPETENCY EVALUATION IS REQUIRED TO22
DETERMINE WHETHER THE JUVENILE HAS BEEN RESTORED TO23
COMPETENCY, THE COURT SHALL ORDER THAT SUCH AN EVALUATION BE24
COMPLETED BY THE DEPARTMENT , AND THE COURT MAY ORDER A25
RESTORATION TO COMPETENCY HEARING UPON RECEIPT OF THE26
EVALUATION.27
HB22-1386
-13- (4) A COURT MAY ONLY ORDER OUTPATIENT RESTORATION1
SERVICES FOR A JUVENILE WHO IS A RESIDENT OF COLORADO, AND THE2
SERVICES MUST BE PROVIDED WITHIN THE STATE OF COLORADO PURSUANT3
TO SECTIONS 19-2.5-702 AND 19-2.5-704.4
SECTION 7. Safety clause. The general assembly hereby finds,5
determines, and declares that this act is necessary for the immediate6
preservation of the public peace, health, or safety.7
HB22-1386
-14-