Section 16-8.5-116.5 - Restoration - time limits - dismissal of charges - exceptions - rules(1)[Formerly 16-8.5-116 IP(6)] To ensure compliance with relevant constitutional principles, for any offense for which the defendant is ordered to receive competency restoration services in an inpatient or outpatient setting, if the court determines, based on available evidence, that there is not a substantial probability that the defendant, with restoration services, will be restored to competency within the reasonably foreseeable future, the court: (a)[Formerly 16-8.5-116 (6)(a)] Shall dismiss the criminal proceedings, the commitment, or the restoration services order upon motion of the district attorney, the defendant, or on its own motion;(b)[Formerly 16-8.5-116 (6)(b) as it will become effective July 1, 2024] May order the district attorney, or upon request from the district attorney, a professional person, as defined in section 27-65-102; a representative of the behavioral health administration in the department; or a representative of the office of civil and forensic mental health to initiate, in a court with jurisdiction, a proceeding for a certification for short-term treatment of the defendant pursuant to section 27-65-108.5 or 27-65-109 if the court finds reasonable grounds to believe the defendant meets criteria for a certification for short-term treatment pursuant to section 27-65-108.5 or 27-65-109;(c)[Formerly 16-8.5-116 (6)(c)] May, or a party may, initiate an action to restrict the rights of the defendant pursuant to article 10.5 of title 27in the case of a defendant who has been found eligible for services pursuant to article 10.5 of title 27 due to an intellectual and developmental disability; or(d)[Formerly 16-8.5-116 (6)(d)] Shall require the department to ensure that case management services and support are made available to any defendant released from commitment pursuant to this article 8.5 due to the substantial probability that the defendant will not be restored to competency in the reasonably foreseeable future.(2)[Formerly 16-8.5-116 (7)] At a review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement pursuant to subsection (7) of this section if:(a) The defendant's highest charged offense is a class 1 misdemeanor or is a level 4 drug felony and the defendant has been in the department's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to the department for court-ordered restoration for an aggregate time of six months; and
(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.(3)[Formerly 16-8.5-116 (8)] At a review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement pursuant to subsection (7) of this section if:(a) The defendant's highest charged offense is a class 5 or class 6 felony or a level 3 drug felony and the defendant has been in the department's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to the department for court-ordered restoration for an aggregate period of one year; and
(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.(4) At a review hearing held concerning the defendant's competency to proceed, the court shall dismiss the charges against the defendant and release the defendant from confinement pursuant to subsection (7) of this section, if: (a) The defendant's highest charged offense is a class 4 felony and the defendant has been in the department's custody for restoration services or has been confined in a jail or other detention facility awaiting transport to the department for court-ordered restoration for an aggregate period of two years; and(b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.(5)[Formerly 16-8.5-116 (9)] Subsections (2), (3), and (4) of this section do not apply if the defendant is charged with a class 1, 2, or 3 felony offense; a sex offense as defined in section 18-1.3-1003 (5); a crime of violence as defined in section 18-1.3-406 (2); or a level 1 or level 2 drug felony. (6) The court shall dismiss the defendant's case if: (a) The defendant is found incompetent to proceed;(b) The charges against the defendant have not been dismissed pursuant to this section; and(c) The defendant's presentence confinement credit, including any time period the defendant was committed for inpatient restoration, or confined in jail or another detention facility awaiting inpatient restoration services, exceeds the maximum sentence for the defendant's highest charged offense.(7)[Formerly 16-8.5-116 (10) as it will become effective July 1, 2024] Prior to the dismissal of charges pursuant to this section or section 16-8.5-111 (5), unless the court has already ordered a person to initiate proceedings for a certification for short-term treatment, the court shall make findings whether there are reasonable grounds to believe the person meets the standard for a certification for short-term treatment. If the court finds there are reasonable grounds, the court may stay the dismissal for thirty-five days and notify any professional person, as defined in section 27-65-102, a representative of the behavioral health administration in the department, or a representative of the office of civil and forensic mental health who has recently treated or interacted with the defendant that there are reasonable grounds for short-term treatment and afford the person an opportunity to pursue certification proceedings or to arrange necessary services.(8) Prior to the dismissal of charges pursuant to section 16-8.5-111 (5), when the defendant's diagnosis includes a neurocognitive or neurodevelopmental impairment, the court may stay the dismissal for thirty-five days. If the court stays the dismissal, the court may order the bridges court liaison to assist with case planning and coordinating with services, including coordinating with government entities or community-based organizations that are capable of providing resources to the defendant upon dismissal of charges.(9)[Formerly 16-8.5-116 (11)] In any circumstance when the defendant's case was dismissed or the defendant was released from confinement, the court shall enter a written decision explaining why the court did or did not terminate the criminal proceeding or the commitment or restoration order.(10)[Formerly 16-8.5-116 (12)] If charges against a defendant are dismissed pursuant to this section or section 16-8.5-111 (5), such charges are not eligible for sealing pursuant to section 24-72-705.(11)[Formerly 16-8.5-116 (13)] The department shall promulgate such rules as necessary to consistently enforce the provisions of this article 8.5.(12)[Formerly 16-8.5-116 (14)] The court shall, at an appropriate time in the restoration process, order the department or the appointed bridges court liaison, as defined in section 13-95-102, to provide the court with an appropriate individualized release plan developed in conjunction with any necessary community providers or resources for the reintegration of the defendant into the community with appropriate services.(13)[Formerly 16-8.5-116 (15)] When the defendant is charged with an offense in municipal court and the defendant is found incompetent to proceed, or when civil commitment proceedings are initiated pursuant to article 65 of title 27, the municipal court shall dismiss the case.(14) If a defendant is in custody and the department does not comply with the time limits set forth in section 16-8.5-111, the defendant is subject to the time limits set forth in subsections (2), (3), and (4) of this section and, based upon the best available evidence, the defendant will not be admitted to an inpatient facility to begin restoration within the time limits described in the applicable subsection, the court may release the defendant or dismiss the case in lieu of the defendant remaining in custody on a wait list for restoration services.(15) When a defendant is in custody and is found incompetent to proceed, at every subsequent review of the defendant's case, the court shall make a finding on the record regarding the expiration of applicable time limits set forth in this section.(16) If a defendant files a motion alleging the court is required to dismiss the case because a time limit in this section has expired, the defendant is entitled to a timely hearing and ruling on the motion.Added by 2024 Ch. 372,§ 13, eff. 6/4/2024.