Once a court finds a defendant incompetent to proceed, a number of things can happen, some optional, some mandatory, depending on the scenario:

1. Regardless of the charges and regardless of restorability, certain persons, such as the District Attorney, may initiate the certification process for civilly committing the defendant. § 16-8.5-111(3). This process is distinct from the criminal case.

2. If the highest charge in the case is a class 2 misdemeanor, a petty offense, a drug misdemeanor, or a traffic offense, the court must dismiss the charges. § 16-8.5-111(1.6). Arguably, unclassified misdemeanors, such as DUI, are not subject to this requirement.

3. If the court isn’t required to dismiss the charges, before beginning restoration services, you can refer the defendant to a competency diversion program offered by your office or to the Bridges Wraparound Care Program. § 16-8.5-111(2)(a)(II).

4. If the court finds, at the time it finds the defendant incompetent, that “there is a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future,” the court must order the defendant to restoration services. § 16-8.5-111(2).

If an evaluator opines that there is not a substantial probability that the defendant can be restored to competency within the reasonably foreseeable future, the court must set a hearing on restorability where you must prove the defendant is restorable. § 16-8.5-111(4)(a)(I).