1. (1) 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:

   1. (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;
   2. (b) May, if after giving due weight to the opinion of a professional person, as defined in section 27-65-102, employed by or under contract with the office of civil and forensic mental health, the court finds reasonable grounds to believe that the defendant meets criteria for a certification for short term treatment pursuant to section 27-65-108.5 or 27-65-109, order one of the following persons 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: The district attorney, or upon request from the district attorney; a professional person, as defined in section 27-65-102, who is not employed by or under contract with the behavioral health administration in the department or the office of civil and forensic mental health; a representative designated by the behavioral health administration in the department, or a representative designated by the office of civil and forensic mental health. Notwithstanding the authority granted pursuant to this subsection (1)(b), a court shall not order a person to initiate a proceeding pursuant to this subsection (1)(b) if initiating a proceeding would contradict the person's professional medical opinion or otherwise violate the person's professional conduct rules.
   3. (c) May, or a party may, initiate an action to restrict the rights of the defendant pursuant to article 10.5 of title 27 in 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
   4. (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. (2) 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:

   1. (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
   2. (b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.

3. (3) 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:

   1. (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
   2. (b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.

4. (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:

   1. (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
   2. (b) The court determines, based on available evidence, that the defendant remains incompetent to proceed.
5. (5) 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. (6) The court shall dismiss the defendant's case if:

   1. (a) The defendant is found incompetent to proceed;
   2. (b) The charges against the defendant have not been dismissed pursuant to this section; and
   3. (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. (7)

   1. (a) Prior to the dismissal of charges pursuant to this section or section 16-8.5-111 (5), the court shall make findings about 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, set a review hearing, and notify any professional person, as defined in section 27-65-102; a representative designated by the behavioral health administration in the department; or a representative designated by 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.

   2. (b) The court shall grant thirty-five-day extensions of the stay described in subsection (7)(a) of this section:

      1. (I) Any number of times with the consent of the defendant; and

      2. (II) Regardless of the defendant's consent, upon request of the prosecution if the court finds good cause:

         1. (A) Up to four times, in addition to the initial stay authorized in subsection (7)(a) of this section, but not to exceed one hundred seventy-five days in total, if the defendant is charged with a crime of violence, as defined in section 18-1.3-406, or for felony unlawful sexual behavior, as defined in section 16-22-102; or
         2. (B) Once, in addition to the initial stay authorized in subsection (7)(a) of this section, but not to exceed seventy days in total, if the defendant is not charged with a crime of violence, as defined in section 18-1.3-406, or for felony unlawful sexual behavior, as defined in section 16-22-102.
   3. (c) For the purposes of subsection (7)(b) of this section, good cause does not include a person's refusal or failure to timely file a petition pursuant to section 27-65-108.5.
   4. (d) When a defendant's charges are dismissed pursuant to this section or section 16-8.5-111 (5), the court shall notify the department in writing that the charges were dismissed and the reason for the dismissal.
8. (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. (9) 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. (10) 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. (11) The department shall promulgate such rules as necessary to consistently enforce the provisions of this article 8.5.
12. (12) 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. (13) 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. (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. (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. (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.

Source: L. 2024: Entire section added with relocations, (HB 24-1034), ch. 372, p. 2516, § 13, effective June 4. L. 2025: (1)(b) and (7) amended, (SB 25-041), ch. 357, p. 1927, § 9, effective August 6.

Editor's note: The provisions of this section are similar to several former provisions of § 16-8.5-116 as they existed prior to 2024. For a detailed comparison of this section, see HB 24-1034, L. 2024, p. 2516.