Understanding Colorado “Detox Holds” Law – 27-81-101 And 27-81
per h. michael steinberg colorado criminal defense attorney – attorney
Understanding Colorado “Detox Holds” Law – 27-81-101 And 27-81-111 C.R.S. – Every year many innocent people are taken into custody “for their own good” when they are intoxicated or high on drugs- or both. These so called “emergency holds” or “emergency commitments” can be terrible experiences for those arrested and they can have devastating consequences. Yet little is published online about this procedure of involuntary arrest in the absence of the suspected commission of a criminal act.
This article is intended to help us all understand how these so-called “detox holds” work.
Procedure for Colorado Emergency Commitment Detoxification Maintained
Under Colorado law, a person can be arrested and detained in a licensed detoxification program without the person’s consent for up to five days only if:
1. an “emergency commitment request” is completed by a responsible person and
2. the detoxification program involved approves the administrator or designee.
colorado detox emergency pledge form 27-81-112 crs
the two bases for an emergency compromise
1. the person is not intoxicated and is clearly dangerous to the health and safety of themselves and others.
2. the person is incapacitated and clearly dangerous to the health and safety of themselves and others.
the definition of “intoxicated person” or person intoxicated by alcohol:”
an“intoxicated person” or “person intoxicated by alcohol” means:
“intoxicated person” – means any person whose mental or physical functioning is temporarily but substantially impaired as a result of the presence of alcohol in the body.
“impaired by alcohol” – means that a person, as a result of the consumption of alcohol, is unconscious or has such impaired judgment that he or she is unable to realize and make a rational decision regarding his or her need for treatment or is unable to care for his or her basic personal needs or safety or lacks sufficient understanding or ability to make or communicate rational decisions regarding his or her person.
There must be facts to support the need for emergency commitment and clearly dangerous behavior based on the personal observations of the applicant and – or the specific statements of others, if any.
requirements for an emergency commitment request for detoxification
here are the requirements and steps that must occur for an emergency “detox” commitment
The person completing an application (for emergency admission must be at least 18 years of age and must have actually observed the behavior of the person seeking admission to the detoxification program. (see form)
- the “applicant” must indicate in the application that the person whose commitment is sought is intoxicated (under the influence) and clearly dangerous to himself and/or others or is incapacitated and clearly dangerous to oneself and/or to others. (see form)
- the request itself must contain facts, statements and information that support the alleged reasons for the engagement.
- The administrator of a licensed detoxification program or designee determines that the reasons for admission must be found to meet the necessary criteria for an emergency admission.
- If the administrator of a licensed program or designee determines that there is no reason for an emergency commitment, the application should be denied and the individual encouraged to seek voluntary treatment.
- If cause is determined to exist, the request is signed, dated, and time documented on the request.
- the emergency commitment period of up to 5 days begins to run.
- pursuant to the provisions of section 27-81-112, c.r.s. You are hereby notified that you have been accepted for emergency treatment on the basis of the emergency commitment request as shown above and a copy of this request will be given to you.
- You are further informed that you may be retained for treatment until the grounds for emergency admission no longer exist.
- in no case may you be held for a period exceeding five (5) days unless a petition for involuntary confinement has been filed with the court. li>
- if a petition for involuntary commitment is filed with the court, you may be held until the petition is heard and determined, but in no event may you be held for a period greater than ten (10) days from the filing of the petition.
- have the right to challenge such detention by applying to the courts for a writ of habeas corpus, to consult with an attorney, and to be represented by an attorney in each state in any related proceedings with your incarceration and reentry and have a court-appointed or court-provided attorney if you want assistance and are unable to obtain an attorney.
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not 5 days – up to 5 days
If a Colorado citizen is admitted for evaluation and treatment, the time frame is no more than five days, it is not a “five day hold”. Each program not only has the discretion to shorten that time period of an “emergency commitment – detox” but is obligated to reduce time with a referral to “voluntary” treatment, if applicable, within five days.
understanding the nature of “imminent”
When analyzing the urgency and ultimate necessity of an emergency engagement, the licensed professional is subject to certain legal definitions and guidelines. one of these answers the question: how imminent is this emergency?
the colorado civil commitment statute review task force defines the term
“imminent” since it is applied to the proximity in time of the danger. the term “imminent” applies to the determination of whether the danger to others or yourself is present; it does not apply to how quickly a specific dangerous act can be performed.
the involuntarily committed person receives counseling (above) about their rights after commitment; is instructive and useful about the rights of the person retained for detoxification:
notice to person admitted for emergency hospitalization:
You
the reality of what really happens on the streets of the denver metro area
detox centers euphemistically call themselves “social detox facilities”. Private organizations like Arapahoe House provide police with a place to locate people who are too drunk on drugs and alcohol to… sober up.
normally the stay in these facilities is less than 48 hours. while “social detox” centers claim to have professionals such as addiction counselors and social workers available to help connect detoxes to resources, the reality is that they provide a cot to sleep at prices that They rival the best hotels in Denver.
adams county, jefferson county, denver and aurora have an “arapahoe house”.
Police choose detox centers over emergency rooms, often making the decision based on the officer’s assessment of the subject’s general level of intoxicated mental state. that decision can have huge consequences, as described below.
what exactly is the definition of detox?
detoxification is a set of interventions aimed at managing acute intoxication and withdrawal.
denotes a cleansing of toxins from the body of the patient who is acutely intoxicated and/or dependent on substances of abuse. detoxification seeks to minimize the physical damage caused by substance abuse.
“blow out” triple zeros “000”
colorado detox facilities calculate a detainee’s release time as the time they “blow” (after a breathalyzer test) – ” three zeros.” In other words, those admitted to “detoxification” are only discharged when they do not present symptoms of substance withdrawal and the blood alcohol level is at 0.00. that averages a detox stay of between 12 hours and three days.
when so-called detoxification becomes abuse, crossing the line, what can go wrong in detox cases?
civil lawsuits stemming from emergency detox commitments have been filed.
One such lawsuit: A federal civil rights lawsuit was filed in 2015 against a Denver detoxification center called the Denver C.A.R.E.S. the suit alleged that:
the denver police department (“dpd”) and the denver cares policy and collusive practice of forcibly detaining intoxicated individuals under the guise of providing consensual medical care to generate revenue for the city and county of denver and the Denver Health and Hospital Authority (“dhha”).
Although there is a statute that authorizes the emergency commitment of intoxicated or incapacitated persons who clearly pose a threat to their own safety or the safety of others, neither DPD nor Denver Cares invoked or followed the mandates of that statute when taking custody of , arrested , and imprisoned mr. cornell and mrs. rodriguez under the pretext of treating his alcohol poisoning.
additionally, in the lawsuit the plaintiffs sought:
End the dpd/denver cares collusive practice of extorting law-abiding citizens who do not consent to denver cares “treatment” in order to fund the denver cares program.
the plaintiffs alleged that their arrest and detention was a violation of:
the us fourth and fourteenth amendments | Constitution; article ii, section 25, of the constitution of colorado; and the common law tort of false imprisonment.
denver police practice was (and still is):
1. to patrol areas where there are likely to be masses of people who have been legally intoxicated, such as sporting events, nightclubs, and bars on weekend nights.
2. to take custody and transport intoxicated persons to detoxification centers without having probable cause to believe they are a danger to themselves or others.
3. Doing this despite the fact that the law (the Colorado Emergency Commitment Statute) expressly allows police to provide or obtain safe transportation home for people who are intoxicated but not dangerous –
….noting that:
4. in reality, no significant medical treatment is provided other than those in “storage” dormitories , with little or no monitoring, until detainees reach their “estimated sobriety time”
the practice of “vacuuming” hundreds of inebriated people off the streets of the Denver metro area each year and incarcerating them in detox centers with little evidence that they actually pose a danger to themselves or for others -apart from being intoxicated- they must be examined from the point of view of public policy.
some important closing points and then the law
First, although one might wonder how the emergency internment law can be constitutional; The answer is this: Colorado courts have determined that the state has a “compelling state interest” in protecting an intoxicated person and the general public from the “catastrophic consequences of alcohol abuse.”
But the law is also clear that the Colorado General Assembly never intended for police to take into protective custody every intoxicated person they find.
Persons who are subject to arrest under this law require that the specific class of intoxicated persons who are subject to emergency commitment must be clearly dangerous to themselves or others. the law leaves this determination (taking someone into protective custody) to the discretion of the police and then covers their decision with immunity from lawsuits for making the decision.
The law does not classify protective custody “holding” as an arrest, and there is no requirement that officers suspect that they are involved in any type of criminal activity.
the only protection, the only standard, that applies to this situation is that the officer must have probable cause to believe that the person is intoxicated enough to be a danger to himself or others, given the totality of circumstances.
It turns out that this is a very low requirement to detain someone against their will.
This is the Colorado law that applies to these cases:
§ 27-81-101. legislative declaration (emergency commitment)
(1) It is the policy of this state that persons with alcohol use disorders and intoxicated persons may not be subject to criminal prosecution for their consumption of alcoholic beverages, but must receive ongoing treatment so that they can maintain a normal life. they live as productive members of society. the general assembly determines and declares that alcohol use disorders and intoxication are matters of state interest.
(2) With the approval of this article 81 at its first regular session in 1973, the forty-ninth general assembly recognized the nature and pervasiveness of alcohol abuse and alcohol use disorders and that public intoxication and alcohol use disorders are health problems that should be handled by public health rather than criminal proceedings. the general assembly further determines and declares that no other health problem has been so seriously neglected and that while the costs of addressing the problem are onerous, the social and economic costs and waste of human resources caused by the abuse of the alcohol and alcohol use disorders are massive, tragic and no longer acceptable.
the general assembly believes that the best interests of this state demand a global and locally oriented attack on the problem of mass alcohol abuse and alcohol use disorders and that this article 81 will provide a basis from which to launch the attack and reduce the tragic human loss, but only if it is adequately funded. therefore, in response to needs determined by an ad hoc committee and to assist in the implementation of this article 81 at both the local and state levels, the general assembly allocates money for: reception and evaluation centers and their staff; medical detox; intensive treatment; intermediate house care; outpatient rehabilitation therapy; orientation, education and in-service training; personnel for the administration, monitoring and evaluation of the program; and operating costs for patient transport.
§ 27-81-111. emergency commitment
(1) (a) when a person is intoxicated or incapacitated by alcohol and is clearly dangerous to the health and safety of himself or others, he or she shall be taken into protective custody by law enforcement authorities or an emergency patrol duty, acting with probable cause, and placed in an approved treatment center. if no such facilities are available, he or she may be detained in an emergency medical center or jail, but only for as long as necessary to prevent injury to self, self, or others or to prevent disruption of the public order.
if the person arrested is a minor, as defined in section 19-1-103(68), c.r.s., the minor will be placed in an environment that is not secure and is physically segregated visually and auditorily from offenders Adults. a law enforcement officer or emergency service patrol officer, by detaining the person, is placing the person in protective custody. in doing so, the detaining officer may reasonably protect himself or herself, but must make all reasonable efforts to protect the health and safety of the detainee.
A placement into protective custody under this section is not an arrest, and no entry or other record shall be made to indicate that the person has been arrested or charged with a crime. law enforcement or emergency services personnel acting pursuant to this section are acting in the exercise of their official duties and are not criminally or civilly liable therefor. nothing in this subsection (1) shall prevent an intoxicated or incapacitated person who is not dangerous to the health and safety of himself or others from being assisted in his home or a similar place by a law enforcement officer or service patrol official emergency.
(b) A sheriff or chief of police who violates the provisions of paragraph (a) of this subsection (1) relating to the detention of minors may be subject to a civil penalty of not more than one thousand dollars. The decision to ticket shall be based on prior violations of the provisions of paragraph (a) of this subsection (1) by the sheriff or chief of police and the sheriff’s or chief of police’s willingness to address the violations to comply with paragraph ( a) of this subsection (1).
(2) A law enforcement officer, emergency service patrolman, physician, spouse, guardian, or relative of the committed person or any other responsible person may submit a written request for emergency commitment in under this section, addressed to the administrator of the approved treatment facility. The request must state the circumstances requiring emergency placement, including the applicant’s personal observations and the specific statements of others, if any, on which the request is based. a copy of the request will be given to the person to be admitted.
(3) If the approved treatment center administrator or his authorized designee approves the request, the individual will be admitted, evaluated, and treated for a period not to exceed five days. the person should be brought to the facility by a law enforcement officer, emergency service patrol, or any interested person. if necessary, the court may be contacted to issue an order to the police, peace officer’s department, or sheriff’s department to transport the person to the facility.
(4) If the approved treatment center administrator or his/her authorized designee determines that the request does not meet the grounds for emergency admission as set forth in subsection (1) of this section, the admission shall be denied and the detained person immediately released, and the person will be encouraged to seek voluntary treatment if appropriate.
(5) When the administrator determines that the grounds for commitment no longer exist, he or she shall release the person committed under this section. A person committed under this section may not be detained in any treatment center for more than five days; except that a person may be detained for more than five days in the approved treatment facility if, within that time period, a petition for involuntary commitment has been filed pursuant to section 27-81-112. a person may not be detained more than ten days after the date of filing the application for involuntary commitment.
(6) Whenever a person is involuntarily detained pursuant to this section, the facility manager or his authorized designee shall promptly inform him, both orally and in writing, of his right to challenge such detention. by applying to the courts for a writ of habeas corpus, be represented by counsel at each stage of any proceeding relating to your commitment and re-entry, and have court-appointed or court-provided counsel if you so desire assistance from a lawyer and cannot get a lawyer.
§ 18-1-703. use of physical force – special relations
(1) the use of physical force on another person that would otherwise constitute a crime is justifiable and is not criminal under any of the following circumstances:
(a) a parent, guardian or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may make reasonable and appropriate physical use force upon the minor or incompetent person when and to the extent reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person.
(b) a superintendent or other authorized official of a jail, prison, or correctional institution may, in order to maintain order and discipline, use reasonable and appropriate physical force when and to the extent reasonably believed to be necessary to maintain order and discipline, but you may use deadly physical force only when you reasonably believe it is necessary to prevent death or serious bodily injury.
(c) a person responsible for maintaining order on public passenger transport, or a person acting at his or her direction, may use reasonable and appropriate physical force when and to the extent necessary to maintain order and the discipline. , but you may use deadly physical force only when reasonably necessary to prevent death or serious bodily injury.
(d) a person acting on reasonable belief that another person is about to commit suicide or inflict serious bodily injury on himself or herself may use reasonable and appropriate physical force on that person to the extent reasonably necessary to thwart the result.
(e) a duly licensed physician, advanced practice nurse, or person acting at their direction may use reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that he or she reasonably believes is adapted to the promotion of the physical or mental health of the patient if:
(i) the treatment is administered with the consent of the patient, or if the patient is a minor or an incompetent person, with the consent of the patient’s parent, guardian or other person entrusted with his care and supervision; or
(ii) the treatment is administered in an emergency when the physician or advanced practice nurse reasonably believes that no one competent can be consulted to give consent and that a reasonable person, wishing to safeguard the welfare of the patient, would give your consent.
understanding the colorado “detox hold” law – 27-81-101 and 27-81-111 c.r.s.
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The content of this article is based on my research, personal experience, and personal analysis and opinions developed from my thirty-six years (as of 2017) of criminal trial experience from both sides of the courtroom. court, as a former career prosecutor. for arapahoe and douglas counties (13 years) and as the owner of my own criminal defense law firm since 1999 (18 years).
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