When a court finds “there is a substantial probability that the defendant, with restoration services, will attain competency in the reasonably foreseeable future”, the court orders “appropriate restoration services” and sets a review.  § 16-8.5-111(2).

Bond

If, at the time the court finds the defendant incompetent to proceed, the defendant is in custody on a misdemeanor, petty offense, or traffic offense, the court must set a hearing on bond within 7 days. § 16-8.5-111(2). At the hearing, assuming the statute doesn’t mandate outright dismissal pursuant to section 16-8.5-111(1.6), the defendant enjoys a presumption of a personal recognizance bond and out-patient restoration services. This presumption can be overcome only by “extraordinary circumstances” proven by clear and convincing evidence.

Inpatient vs. Outpatient Restoration Services

If the defendant is out of custody at the time the court orders restoration services or “will be released soon,” the court must order outpatient restoration services unless the Office of Civil and Forensic Mental Health (“OCFMH”) recommends inpatient restoration would be clinically appropriate. The court “shall commit the defendant to the custody of the department and order inpatient restoration services” if the court:

1. Finds the defendant is not eligible for release from custody or is unable to post the monetary condition of bond, or
2. Approves the recommendation from OCFMH that inpatient services are clinically appropriate.

When a defendant is committed to the department for inpatient restoration services, the department takes “custody” of the defendant and provides them restoration services. Once the department believes the defendant has been restored, the department notifies the local sheriff, and the sheriff must return the defendant to the county jail within 72 hours. § 16-8.5-111(9).

Some courts permit, over DA objection, a defendant to remain on bond until an inpatient restoration bed becomes available. Although this may not be preferable, this does mean the defendant’s time waiting for restoration services to begin does not count toward the time limits on restoration.

Defendant’s “Volitional” Non-cooperation with Restoration Services

In addition to the court’s authority to order compliance with restoration services, a court can cite a defendant’s “volitional” lack of cooperation to find that a defendant is restorable to competency so long as the defendant could be restored if the defendant cooperated. § 16-8.5-111(6).

The term “volitional,” however, is defined as excluding a lack of cooperation resulting from the medical disorder causing the defendant’s incompetency or a defendant’s “attempt to raise a bona fide, good faith concern about medication side effects and risks.” § 16-8.5-111(6)(b).

Restoration to Competency Waitlist

There is presently a state-wide waitlist of incompetent defendants awaiting restoration to competency. The wait for in-custody defendants is so long that the resulting delay in restoration services has been held by a federal court to be an unconstitutional deprivation of those defendants’ due process rights. As a result, every year for the last several years, Colorado has had to pay large fines. Although these fines are channeled back into the system to help alleviate the waitlist, despite considerable efforts, the waitlist persists. The problem has led to a number of legal reforms to the competency system and competency laws in recent years. These reforms have, among other consequences, made it more difficult to hold incompetent defendants, mandated dismissal of certain incompetent defendants, and created new alternatives to competency, such as diversionary programs like the Bridges Wraparound Care Program.  

Tier 1 and Tier 2 Defendants

The state hospital is statutorily required to admit defendants for restoration services within a certain period of time depending on a defendant’s “tier.”

A “tier 1” defendant must be admitted to restoration serves within 7 days after the state hospital receives the court order. § 16-8.5-111(8)(a)(II). Tier 1 defendants are gravely disabled, are a danger to themselves or others, or have a mental health disorder and are in urgent need of inpatient hospitalization to prevent harm to themselves or others. § 16-8.5-101(19).

A “tier 2” defendant is any defendant that isn’t a tier 1 defendant. These defendants must be admitted to restoration services within 28 days of the state hospital receiving the court order. § 16-8.5-101(20).

Despite these statutory mandates, defendants must wait on the restoration waitlist before admission to the state hospital. As of Fall, 2025, according to practitioners in the courtroom, the actual wait time for a tier 1 defendant to begin restoration services is 96 days. A tier 2 patient must wait 101 days. 

Time Limits on Custody for Purposes of Restoration

Colorado has created statutory limits on the amount of time the state can hold a defendant in custody awaiting a defendant to be restored, regardless of the defendant’s actual restorability. § 16-8.5-116.5(2)–(6). Once a defendant reaches the statutory limit, if the defendant is still incompetent to proceed, the court must release the defendant and dismiss the charges, regardless of whether the defendant is restorable.

The limits are based on the level of offense.

Id.

The time limit is based on the total time in custody awaiting restoration, not on the amount of time the defendant has actually received restoration services. See id. (“. . . 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  . . . .”

The time limits count the time spent in custody on the restoration waitlist. Given that, as of Fall of 2025, a tier 2 defendant must wait an average of 101 days to begin restoration, a defendant charged with an M1 or a DF4 may receive fewer than 80 days of restoration services before they must be released from custody. This is one reason why alternatives to competency for lower-level cases may achieve better results than traditional competency and restoration proceedings.

The time limits do not supersede or override a court’s statutory requirement to dismiss a case if you cannot prove the defendant is restorable at a restorability hearing. If at any time, an evaluator opines that “there is not a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future,” the court must set a restoration hearing pursuant to § 16-8.5-111(4) to determine whether the defendant is restorable to competency within the reasonably foreseeable future. § 16-8.5-111(4). If you cannot overcome the presumption against non-restorability at that hearing, the court shall dismiss the case regardless of whether the defendant has reached the time limits outlined in § 16-8.5-116.5(2)–(6). See Restorability. This is another reason to consider alternatives to restoration.