As used in this article 8.5, unless the context otherwise requires:
(1) "Collateral materials" means the relevant police incident reports and the charging documents, either the criminal information or indictment.
(2) "Competency evaluation" includes both court-ordered competency evaluations and second evaluations.
(3) "Competency evaluator" means a licensed physician who is a psychiatrist or a licensed psychologist, each of whom is trained in forensic competency assessments, or a psychiatrist who is in forensic training and practicing under the supervision of a psychiatrist with expertise in forensic psychiatry, or a psychologist who is in forensic training and is practicing under the supervision of a licensed psychologist with expertise in forensic psychology.
(4) "Competency hearing" means a hearing to determine whether a defendant is competent to proceed.
(5) "Competent to proceed" means that the defendant does not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents the defendant from having a rational and factual understanding of the criminal proceedings.
(6) "Court-ordered competency evaluation" means a court-ordered examination of a defendant either before, during, or after trial, directed to developing information relevant to a determination of the defendant's competency to proceed at a particular stage of the criminal proceeding, that is performed by a competency evaluator and includes evaluations concerning restoration to competency.
(7) "Court-ordered report" means a report of an evaluation, conducted by or under the direction of the department, that is the statutory obligation of the department to prepare when requested to do so by the court.
(8) "Criminal proceedings" means trial, sentencing, satisfaction of the sentence, execution, and any pretrial matter that is not susceptible of fair determination without the personal participation of the defendant.
(9) "Department" means the department of human services.
(10) "Developmental disability" means a disability that has manifested before the person reaches twenty-two years of age, constitutes a substantial disability to the affected individual, and is attributable to an intellectual disability or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with an intellectual disability. Unless otherwise specifically stated, the federal definition of "developmental disability", 42 U.S.C. sec. 15002 (8), shall not apply.
(11) "Executive director" means the executive director of the department of human services.
(12) "Incompetent to proceed" means that, as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.
(13) "In-custody" means in prison, in a jail, or in any other locked detention facility that does not meet the definition of inpatient.
(14) "Inpatient" means in the custody of the department, either in a hospital or in a full- time, jail-based restoration program developed by the department.
(15) "Mental disability" means a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability, significantly interfering with adaptive behavior. "Mental disability" does not include acute intoxication from alcohol or other substances, or any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability.
(16) "Outpatient" means a location outside of the custody of the department. "Outpatient" does not include a jail, prison, or other detention facility where the defendant is in- custody.
(17) "Restoration hearing" means a hearing to determine whether a defendant who has previously been determined to be incompetent to proceed has become competent to proceed.
(18) "Second evaluation" means an evaluation requested by the court, the district attorney, or the defendant that is performed by a competency evaluator and that is not performed by or under the direction of, or paid for by, the department.
(19) "Tier 1" means a defendant:
(a) Who has been ordered to receive inpatient restorative treatment;
(b) For whom a competency evaluator has determined either that the defendant:
(I) Appears to have a mental health disorder and, as a result of the mental health disorder, appears to be a danger to others or to himself or herself or appears to be gravely disabled; or
(II) Has a mental health disorder; and
(c) For whom, as a result of the determination made pursuant to subsection (19)(b) of this section, delaying inpatient hospitalization beyond seven days would cause harm to the defendant or others.
(20) "Tier 2" means a defendant who has been ordered to receive inpatient restorative treatment and who does not meet the criteria to be a tier 1 defendant.
Source: L. 2008: Entire article added, p. 1838, § 2, effective July 1. L. 2018: IP and (7) amended, (HB 18-1109), ch. 139, p. 914, § 3, effective April 23. L. 2019: Entire section amended, (SB 19-223), ch. 227, p. 2273, § 1, effective July 1; (9) amended, (SB 19-241), ch. 390, p. 3465, § 11, effective August 2. L. 2020: (19)(c) amended, (HB 20-1402), ch. 216, p. 1046, § 25, effective June 30.
Editor's note: Amendments to this section by SB 19-223 and SB 19-241 were harmonized.
Notes of Decisions
Cited in
31
cases (
13 in the last 5 years), 2009–2026 · leading case:
Zapata v. People, 2018 CO 82 (Colo. 2018).
Zapata v. People, 2018 CO 82 (Colo. 2018).
· cites it 22× “§ 16-8.5-101(2), C.R.S. (2018).4 The question, then, is whether the report completed following Murillo’s competency evaluation is protected by the physician-patient privilege or the psychologist-client privilege.”
Peo in Interest of A.C.E-D, 2018 COA 157 (Colo. Ct. App. 2018).
· cites it 12× “2015, is neither facially unconstitutional nor unconstitutional as applied because it incorporated the definition of “incompetent to proceed” for adults in criminal proceedings set out in section 16-8.5-101(11), C.R.S. 2015. COLORADO COURT OF APPEALS 2018COA157 Court of Appeals…”
Nagi v. People, 2017 CO 12 (Colo. 2017).
· cites it 11× “§§ 16-8.5-101(11), -102(2)(a), C.R.S. (2016).”
In re the People ex rel. W.P., 295 P.3d 514 (Colo. 2013).
· cites it 11× “1392 that had previously caused the three cross-references to identify the wrong subsections of section 16-8.5-101. 14 Despite this additional opportunity to amend the Children's Code to reference, in some way, the adult provisions allowing indigent defendants to receive a…”
People v. Mondragon, 217 P.3d 936 (Colo. Ct. App. 2009).
· cites it 2× “Under former section 16-8-102(8), which is applicable here, a defendant is "incompetent to proceed" if he suffers from a mental disease or defect that renders him or her incapable of (1) understanding the nature and course of the proceedings against him or her, or (2)…”
v. Lindsey, 2020 CO 21 (Colo. 2020).
· cites it 14× “He added that he wished he had a lawyer who would “at least look[] 3While sections 16-8.5-101 through -103, C.R.S. (2019) were amended in 2019, long after Lindsey’s trial, the changes are not relevant to the analysis here.”
People v. Nagi, 396 P.3d 60 (Colo. Ct. App. 2014).
· cites it 8× “¶ 15 While section 16-8.5-101, C.R.S. 2013, does not contain a definition of “reason to believe,” and “there is no definitive constitutional standard with respect to the nature and quantum of evidence necessary to require resort to an adequate procedure for determining…”
People v. Price, 240 P.3d 557 (Colo. Ct. App. 2010).
· cites it 2× “The current definition is set forth in section 16-8.5-101(11), C.R.$.2009 (" 'Incompetent to proceed' means that, as a result of a mental disability or develop *562 mental disability, the defendant does not have sufficient present ability to consult with defendant's lawyer with…”
People v. Wilson, 397 P.3d 1090 (Colo. Ct. App. 2011).
· cites it 2× “§ 16-8.5-101(4), C.R.S.2010; see Dusky v.”
v. Dax Ace Anderson, 2020 COA 56 (Colo. Ct. App. 2020).
· cites it 2× “” § 16-8.5-101(12), C.R.S. 2019; cf. Dusky v.”
People v. Wingfield, 411 P.3d 869 (Colo. Ct. App. 2014).
“¶ 33 Both parties agree that the current statutory procedures for competency hearings set forth in sections 16-8.5-101 to - 118, C.R.S. 2014, do not apply in this case.”
— Colo. Rev. Stat. § 16-8.5-101(1) — 1 case
— Colo. Rev. Stat. § 16-8.5-101(11) — 10 cases
Peo in Interest of A.C.E-D, 2018 COA 157 (Colo. Ct. App. 2018).
“2015, is neither facially unconstitutional nor unconstitutional as applied because it incorporated the definition of “incompetent to proceed” for adults in criminal proceedings set out in section 16-8.5-101(11), C.R.S. 2015. COLORADO COURT OF APPEALS 2018COA157 Court of Appeals…”
Nagi v. People, 2017 CO 12 (Colo. 2017).
“§§ 16-8.5-101(11), -102(2)(a), C.R.S. (2016).”
In re the People ex rel. W.P., 295 P.3d 514 (Colo. 2013).
“1392 that had previously caused the three cross-references to identify the wrong subsections of section 16-8.5-101. 14 Despite this additional opportunity to amend the Children's Code to reference, in some way, the adult provisions allowing indigent defendants to receive a…”
People v. Nagi, 396 P.3d 60 (Colo. Ct. App. 2014).
“¶ 15 While section 16-8.5-101, C.R.S. 2013, does not contain a definition of “reason to believe,” and “there is no definitive constitutional standard with respect to the nature and quantum of evidence necessary to require resort to an adequate procedure for determining…”
People v. Price, 240 P.3d 557 (Colo. Ct. App. 2010).
“The current definition is set forth in section 16-8.5-101(11), C.R.$.2009 (" 'Incompetent to proceed' means that, as a result of a mental disability or develop *562 mental disability, the defendant does not have sufficient present ability to consult with defendant's lawyer with…”
— Colo. Rev. Stat. § 16-8.5-101(12) — 13 cases
v. Lindsey, 2020 CO 21 (Colo. 2020).
“He added that he wished he had a lawyer who would “at least look[] 3While sections 16-8.5-101 through -103, C.R.S. (2019) were amended in 2019, long after Lindsey’s trial, the changes are not relevant to the analysis here.”
v. Dax Ace Anderson, 2020 COA 56 (Colo. Ct. App. 2020).
“” § 16-8.5-101(12), C.R.S. 2019; cf. Dusky v.”
— Colo. Rev. Stat. § 16-8.5-101(14) — 1 case
— Colo. Rev. Stat. § 16-8.5-101(15) — 2 cases
— Colo. Rev. Stat. § 16-8.5-101(18) — 1 case
— Colo. Rev. Stat. § 16-8.5-101(2) — 3 cases
Zapata v. People, 2018 CO 82 (Colo. 2018).
“§ 16-8.5-101(2), C.R.S. (2018).4 The question, then, is whether the report completed following Murillo’s competency evaluation is protected by the physician-patient privilege or the psychologist-client privilege.”
— Colo. Rev. Stat. § 16-8.5-101(4) — 6 cases
People v. Mondragon, 217 P.3d 936 (Colo. Ct. App. 2009).
“Under former section 16-8-102(8), which is applicable here, a defendant is "incompetent to proceed" if he suffers from a mental disease or defect that renders him or her incapable of (1) understanding the nature and course of the proceedings against him or her, or (2)…”
Zapata v. People, 2018 CO 82 (Colo. 2018).
“§ 16-8.5-101(2), C.R.S. (2018).4 The question, then, is whether the report completed following Murillo’s competency evaluation is protected by the physician-patient privilege or the psychologist-client privilege.”
People v. Wilson, 397 P.3d 1090 (Colo. Ct. App. 2011).
“§ 16-8.5-101(4), C.R.S.2010; see Dusky v.”
— Colo. Rev. Stat. § 16-8.5-101(5) — 4 cases
Zapata v. People, 2018 CO 82 (Colo. 2018).
“§ 16-8.5-101(2), C.R.S. (2018).4 The question, then, is whether the report completed following Murillo’s competency evaluation is protected by the physician-patient privilege or the psychologist-client privilege.”
v. Lindsey, 2020 CO 21 (Colo. 2020).
“He added that he wished he had a lawyer who would “at least look[] 3While sections 16-8.5-101 through -103, C.R.S. (2019) were amended in 2019, long after Lindsey’s trial, the changes are not relevant to the analysis here.”
— Colo. Rev. Stat. § 16-8.5-101(9) — 1 case
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