(1) (a) Whenever the question of a defendant's competency to proceed is raised, by either party or on the court's own motion, the court may make a preliminary finding of competency or incompetency to proceed, which is a final determination unless a party to the case objects within seven days after the court's preliminary finding.
(b) On or before the date when a court orders that a defendant be evaluated for competency, a bridges court liaison for the district hired or contracted pursuant to article 95 of title 13 may be assigned to the defendant.
(2) If either party objects to the court's preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department and that the department prepare a court-ordered report.
(3) Within seven days after receipt of the court-ordered report, either party may request a hearing or a second evaluation.
(4) If a party requests a second evaluation, any pending requests for a hearing must be continued until the receipt of the second evaluation report. The report of the expert conducting the second evaluation must be completed and filed with the court within thirty-five days after the court order allowing the second evaluation, unless the time period is extended by the court for good cause. If a second evaluation is completed and restoration is ultimately ordered, then the court shall make the second evaluation available to the department. If the second evaluation is requested by the court, it must be paid for by the court.
(5) If neither party requests a hearing or a second evaluation within the applicable time frame, the court shall enter a final determination, based on the information then available to the court, whether the defendant is or is not competent to proceed.
(6) If a party makes a timely request for a hearing, the hearing shall be held within thirty-five days after the request for a hearing or, if applicable, within thirty-five days after the filing of the second evaluation report, unless the time is extended by the court after a finding of good cause.
(7) At any hearing held pursuant to this section, the party asserting the incompetency of the defendant shall have the burden of submitting evidence and the burden of proof by a preponderance of the evidence.
(8) If the question of the defendant's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty and the court determines that the defendant is incompetent to proceed or orders a court-ordered competency evaluation, the court may declare a mistrial. Declaration of a mistrial under these circumstances does not constitute jeopardy, nor does it prohibit the trial or sentencing of the defendant for the same offense after the defendant has been found restored to competency.
(9) In all proceedings under this article 8.5, when competency has been raised by the parole board pursuant to section 16-8.5-102 (2)(d), the court shall pay for any evaluation to determine competency pursuant to this section, and the evaluation must be conducted at the place where the defendant is in custody.
Source: L. 2008: Entire article added, p. 1840, § 2, effective July 1. L. 2012: (1), (3), (4), and (6) amended, (SB 12-175), ch. 208, p. 852, § 80, effective July 1. L. 2018: (9) added, (HB 18-1109), ch. 139, p. 914, § 5, effective April 23. L. 2019: (1), (3), (4), and (8) amended, (SB 19-223), ch. 227, p. 2276, § 3, effective July 1. L. 2020: (8) amended, (SB 20-100), ch. 61, p. 207, § 6, effective March 23. L. 2022: (4) amended, (HB 22-1386), ch. 317, p. 2255, § 1, effective July 1. L. 2023: (1)(b) amended, (SB 23-229), ch. 119, p. 442, § 4, effective April 27. L. 2024: (1)(b) and (8) amended, (HB 24-1034), ch. 372, p. 2501, § 2, effective June 4.
Editor's note: This section is similar to former § 16-8-111 as it existed prior to 2008.
Cross references: For the constitutional provision on double jeopardy, see § 18 of article II of the state constitution.
Notes of Decisions
In re the People ex rel. W.P., 295 P.3d 514 (Colo. 2013).
· cites it 11× “(2007)-which had committed the question of whether or not a defendant could receive a competency evaluation 5 to a court's discretion-with section 16-8.5-103, C.R.S. (2012 6 ), which mandates that a court order a competency evaluation upon either party's timely objection to its…”
People v. Price, 240 P.3d 557 (Colo. Ct. App. 2010).
· cites it 6× “2009, including a reference to section 16-8.5-103, C.R.S. 2009. 2 . Repealed by Ch.”
Zapata v. People, 2018 CO 82 (Colo. 2018).
· cites it 2× “Thus, the information in a competency evaluation report is not necessary to prescribe or act for the defendant; it is necessary to enable the evaluator to comply with the court's order and, by extension, with subsections 16-8.”
v. Lindsey, 2020 CO 21 (Colo. 2020).
· cites it 10× “¶ 21, there is no statutory requirement that the attorney suspecting the defendant’s incompetence must first give the judge “reason to believe” there may be a competency issue before the competency determination procedures contained in section 16-8.5-103 are triggered. Having…”
People v. Nagi, 396 P.3d 60 (Colo. Ct. App. 2014).
· cites it 2× “§ 16-8.5-103(2), C.R.S.2013. ¶ 36 The legislature has defined “incompetent to proceed” as follows: “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…”
People v. Wingfield, 411 P.3d 869 (Colo. Ct. App. 2014).
· cites it 2× “The current statute, section 16-8.5-103(3) -(5), C.R.S.2014, provides for requesting a second evaluation, but the former statute did not contain any express provision for a second evaluation or examination.”
In re People v. Roina, 2019 CO 20 (Colo. 2019).
· cites it 10× “The procedures for doing so are governed by section 16-8.5-103, C.R.S. (2018).”
People v. Matthew F. Rodriguez (Colo. Ct. App. 2022).
· cites it 19× “Although section 16-8.5-103, C.R.S. 2018, did not require the court to continue the competency hearing to allow for neurological testing following a second competency evaluation, the court nonetheless granted the defense’s request for a continuance to complete the testing.”
Peo v. Griffin (Colo. Ct. App. 2024).
· cites it 5× “ended in December 2007, the 2008 version of section 16-8.5-103 didn’t apply to Griffin’s case.”
Peo v. Herrington (Colo. Ct. App. 2025).
· cites it 4× “” § 16-8.5-103(1)(a), C.R.S. 2024. “If either party objects to the court’s preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department…”
People v. Lindsey, 2018 COA 96 (Colo. Ct. App. 2018).
· cites it 5× “While we do not condone counsel filing a motion on the eve of trial raising concerns that had been ongoing for months, the trial court’s failure to comply with section 16-8.5-103 requires the judgment to be vacated and the case to be remanded for further proceedings.”
Colo. Rev. Stat. § 16-8.5-103(1): 5 cases
In re the People ex rel. W.P., 295 P.3d 514 (Colo. 2013).
“(2007)-which had committed the question of whether or not a defendant could receive a competency evaluation 5 to a court's discretion-with section 16-8.5-103, C.R.S. (2012 6 ), which mandates that a court order a competency evaluation upon either party's timely objection to its…”
v. Lindsey, 2020 CO 21 (Colo. 2020).
“¶ 21, there is no statutory requirement that the attorney suspecting the defendant’s incompetence must first give the judge “reason to believe” there may be a competency issue before the competency determination procedures contained in section 16-8.5-103 are triggered. Having…”
In re People v. Roina, 2019 CO 20 (Colo. 2019).
“The procedures for doing so are governed by section 16-8.5-103, C.R.S. (2018).”
People v. Matthew F. Rodriguez (Colo. Ct. App. 2022).
“Although section 16-8.5-103, C.R.S. 2018, did not require the court to continue the competency hearing to allow for neurological testing following a second competency evaluation, the court nonetheless granted the defense’s request for a continuance to complete the testing.”
People v. Lindsey, 2018 COA 96 (Colo. Ct. App. 2018).
“While we do not condone counsel filing a motion on the eve of trial raising concerns that had been ongoing for months, the trial court’s failure to comply with section 16-8.5-103 requires the judgment to be vacated and the case to be remanded for further proceedings.”
Colo. Rev. Stat. § 16-8.5-103(1)(a): 3 cases
v. Lindsey, 2020 CO 21 (Colo. 2020).
“¶ 21, there is no statutory requirement that the attorney suspecting the defendant’s incompetence must first give the judge “reason to believe” there may be a competency issue before the competency determination procedures contained in section 16-8.5-103 are triggered. Having…”
Peo v. Herrington (Colo. Ct. App. 2025).
“” § 16-8.5-103(1)(a), C.R.S. 2024. “If either party objects to the court’s preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department…”
Colo. Rev. Stat. § 16-8.5-103(2): 11 cases
Zapata v. People, 2018 CO 82 (Colo. 2018).
“Thus, the information in a competency evaluation report is not necessary to prescribe or act for the defendant; it is necessary to enable the evaluator to comply with the court's order and, by extension, with subsections 16-8.”
In re the People ex rel. W.P., 295 P.3d 514 (Colo. 2013).
“(2007)-which had committed the question of whether or not a defendant could receive a competency evaluation 5 to a court's discretion-with section 16-8.5-103, C.R.S. (2012 6 ), which mandates that a court order a competency evaluation upon either party's timely objection to its…”
People v. Nagi, 396 P.3d 60 (Colo. Ct. App. 2014).
“§ 16-8.5-103(2), C.R.S.2013. ¶ 36 The legislature has defined “incompetent to proceed” as follows: “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…”
v. Lindsey, 2020 CO 21 (Colo. 2020).
“¶ 21, there is no statutory requirement that the attorney suspecting the defendant’s incompetence must first give the judge “reason to believe” there may be a competency issue before the competency determination procedures contained in section 16-8.5-103 are triggered. Having…”
Colo. Rev. Stat. § 16-8.5-103(3): 6 cases
People v. Wingfield, 411 P.3d 869 (Colo. Ct. App. 2014).
“The current statute, section 16-8.5-103(3) -(5), C.R.S.2014, provides for requesting a second evaluation, but the former statute did not contain any express provision for a second evaluation or examination.”
In re People v. Roina, 2019 CO 20 (Colo. 2019).
“The procedures for doing so are governed by section 16-8.5-103, C.R.S. (2018).”
Peo v. Griffin (Colo. Ct. App. 2024).
“ended in December 2007, the 2008 version of section 16-8.5-103 didn’t apply to Griffin’s case.”
Colo. Rev. Stat. § 16-8.5-103(4): 4 cases
In re the People ex rel. W.P., 295 P.3d 514 (Colo. 2013).
“(2007)-which had committed the question of whether or not a defendant could receive a competency evaluation 5 to a court's discretion-with section 16-8.5-103, C.R.S. (2012 6 ), which mandates that a court order a competency evaluation upon either party's timely objection to its…”
People v. Matthew F. Rodriguez (Colo. Ct. App. 2022).
“Although section 16-8.5-103, C.R.S. 2018, did not require the court to continue the competency hearing to allow for neurological testing following a second competency evaluation, the court nonetheless granted the defense’s request for a continuance to complete the testing.”
Colo. Rev. Stat. § 16-8.5-103(5): 4 cases
People v. Matthew F. Rodriguez (Colo. Ct. App. 2022).
“Although section 16-8.5-103, C.R.S. 2018, did not require the court to continue the competency hearing to allow for neurological testing following a second competency evaluation, the court nonetheless granted the defense’s request for a continuance to complete the testing.”
Peo v. Herrington (Colo. Ct. App. 2025).
“” § 16-8.5-103(1)(a), C.R.S. 2024. “If either party objects to the court’s preliminary finding, or if the court determines that it has insufficient information to make a preliminary finding, the court shall order that the defendant be evaluated for competency by the department…”
Colo. Rev. Stat. § 16-8.5-103(7): 5 cases
People v. Matthew F. Rodriguez (Colo. Ct. App. 2022).
“Although section 16-8.5-103, C.R.S. 2018, did not require the court to continue the competency hearing to allow for neurological testing following a second competency evaluation, the court nonetheless granted the defense’s request for a continuance to complete the testing.”
Colo. Rev. Stat. § 16-8.5-103(8): 1 case
In re the People ex rel. W.P., 295 P.3d 514 (Colo. 2013).
“(2007)-which had committed the question of whether or not a defendant could receive a competency evaluation 5 to a court's discretion-with section 16-8.5-103, C.R.S. (2012 6 ), which mandates that a court order a competency evaluation upon either party's timely objection to its…”
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