BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 2635
                                                                  Page 1

          Date of Hearing:   April 20, 2010
          Counsel:                Nicole J. Hanson

                                 Tom Ammiano, Chair

                  AB 2635 (Portantino) - As Amended:  April 5, 2010
           SUMMARY  :   Adds a nonsworn employee of a law enforcement agency  
          whose job description includes the collection of fingerprints to  
          the list of persons who may seek to have an arrestee's blood  
          tested, either voluntarily or by court order, for specified  
          communicable diseases when exposed to an arrestee's bodily  
          fluids while acting within the scope of his or her duties.

           EXISTING LAW  : 

          1)Allows a peace officer, firefighter, custodial officer,  
            custody assistant, a nonsworn uniformed employee of a law  
            enforcement agency whose job entails the care or control of  
            inmates in a detention facility, or emergency medical  
            personnel who, while acting within the scope of his or her  
            duties, is exposed to an arrestee's blood or bodily fluids, to  
            do the following:

             a)   Prior to filing a petition with the court, a licensed  
               health care provider shall notify the arrestee of the  
               bloodborne pathogen exposure and make a good-faith effort  
               to obtain the voluntary informed consent of the arrestee or  
               the arrestee's authorized legal representative to perform a  
               test for Human Immunodeficiency Virus (HIV), hepatitis B,  
               and hepatitis C. The voluntary informed consent shall be in  
               writing.  Once consent is given in writing, the arrestee  
               shall provide three specimens of blood for testing, as  

             b)   If voluntary informed consent is not given in writing,  
               the affected individual may petition, ex parte, the court  
               for an order requiring testing as provided in this chapter.  
                The petition shall include a written certification by a  
               health care professional that an exposure, including the  
               nature and extent of the exposure, has occurred.


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             c)   The court shall promptly conduct a hearing.  If the  
               court finds that probable cause exists to believe that a  
               possible bloodborne pathogen exposure took place between  
               the arrestee and the peace officer, firefighter, or  
               emergency medical personnel, as specified, the court shall  
               order that the arrestee provide three specimens of blood  
               for testing, as provided.  [Health and Safety Code Section  
               (HSC) 121060(a).]

          2)Defines "bloodborne pathogen exposure" to be a percutaneous  
            injury, including, but not limited to, a needle stick or cut  
            with a sharp object, or the contact of non-intact skin or  
            mucous membranes with any of the bodily fluids, in accordance  
            with the most current bloodborne pathogen exposure definition  
            established by the federal Centers for Disease Control and  
            Prevention.  [HSC Section 121060.1(a).]

          3)Defines "bodily fluids" to include the following:  blood,  
            tissue, mucous containing visible blood, semen, and vaginal  
            secretions.  [HSC Section 121060.1(b).]

          4)Declares the people of the State of California find that  
            Acquired Immune Deficiency Syndrome (AIDS), AIDS-related  
            conditions, and other communicable diseases pose a major  
            threat to the public health and safety.  The health and safety  
            of the public, victims of sexual crimes, and peace officers,  
            firefighters, and custodial personnel who may come into  
            contact with infected persons, have not been adequately  
            protected by law.  The purpose of this chapter is to require  
            that information that may be vital to the health and safety of  
            the public, victims of certain crimes, certain defendants and  
            minors, and custodial personnel, custodial medical personnel,  
            peace officers, firefighters and emergency medical personnel  
            put at risk in the course of their official duties, be  
            obtained and disclosed in an appropriate manner in order that  
            precautions can be taken to preserve their health and the  
            health of others or that those persons can be relieved from  
            groundless fear of infection.  (HSC Section 121050.)

          5)States every person confined in any local detention facility  
            who commits a battery by gassing upon the person of any peace  
            officer or employee of the local detention facility is guilty  
            of aggravated battery and shall be punished by imprisonment in  
            a county jail or by imprisonment in the state prison for two,  
            three, or four years.  [Penal Code Section 243.9(a).]


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          6)Defines "gassing" as intentionally placing or throwing, or  
            causing to be placed or thrown, upon the person of another any  
            human excrement or other bodily fluids or bodily substances or  
            any mixture containing human excrement or other bodily fluids  
            or bodily substances that result in actual contact with the  
            person's skin or membranes.   [Penal Code Section 243.9(b).]

          7)Allows a person in charge of the local detention facility to  
            use every available means to immediately investigate all  
            reported or suspected batteries by gassing, including, but not  
            limited to, the use of forensically acceptable means of  
            preserving and testing the suspected gassing substance to  
            confirm the presence of human excrement or other bodily fluids  
            or bodily substances.  If there is probable cause to believe  
            that the inmate has committed battery by gassing, the chief  
            medical officer of the local detention facility, or his or her  
            designee, may, when he or she deems it medically necessary to  
            protect the health of an officer or employee who may have been  
            subject to a violation of this section, order the inmate to  
            receive an examination or test for hepatitis or tuberculosis  
            or both hepatitis and tuberculosis on either a voluntary or  
            involuntary basis immediately after the event, and  
            periodically thereafter as determined to be necessary by the  
            medical officer in order to ensure that further hepatitis or  
            tuberculosis transmission does not occur.  These decisions  
            shall be consistent with an occupational exposure as defined  
            by the Center for Disease Control and Prevention.  The results  
            of any examination or test shall be provided to the officer or  
            employee who has been subject to a reported or suspected  
            violation of this section.  [Penal Code Section 243.9(c).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)The Historical and Constitutional Framework for Involuntary  
            Testing  :  By compelling an individual to submit to an  
            involuntary blood test, the protection of the Fourth Amendment  
            to the United States Constitution is invoked.  It is well  
            established that a blood test is a search within the meaning  
            of the Fourth Amendment.  [See Skinner v. Railway Labor  
            Executives' Ass'n (1989) 489 U.S. 602, 616; Schmerber v.  
            California (1966) 384 U.S. 757, 767- 68 (upholding compulsory  
            taking of blood in order to perform warrantless blood alcohol  


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            tests).]  The Fourth Amendment provides that the Federal  
            Government shall not infringe upon an individual's right to be  
            free from unreasonable searches and seizures.  (See U.S.  
            Const., 4th Amend.) 

          In determining whether a search is reasonable, the United States  
            Supreme Court probes the circumstances surrounding the search  
            and examines the nature of the search itself.  [Skinner v.  
            Railway Labor Executives' Ass'n, supra, 489 U.S. at 619  
            (citing United States v. Montoya de Hernandez (1985) 473 U.S.  
            531, 537.]  Whether a search is permissible "is judged by  
            balancing its intrusion on the individual's Fourth Amendment  
            interests against its promotion of legitimate governmental  
            interests."  [See Ibid. (citing Delaware v. Prouse (1979) 440  
            U.S. 648, 654; United States v. Martinez-Fuerte (1976) 428  
            U.S. 543.]  The Supreme Court has consistently held that  
            medical examinations, including blood tests, trigger, at a  
            minimum, the Fourth Amendment balancing test.  [See, e.g.,  
            Schmerber v. California, supra, 384 U.S. at 767-68  
            ("compelled" blood testing is an intrusion constituting a  
            search); see also Yin v. State of California (9th Cir. 1996)  
            95 F.3d 864, 874 (O'Scannlain, J., concurring) ("[C]ertain  
            aspects of the routine physical examination at issue here  
            would implicate the requisite 'concerns about bodily  
            integrity'," and thus trigger protection under the Fourth  

          The purpose of the Fourth Amendment is "to guarantee the  
            privacy, dignity, and security of persons against certain  
            arbitrary and invasive acts by officers of the Government or  
            those acting at their direction."  (Skinner v. Railway Labor  
            Executives' Ass'n, supra, 489 U.S. at 613-14).  As such, most  
            government searches require a warrant issued by a judge based  
            upon probable cause in order to guard against arbitrary and  
            invasive acts.  (Id. at 619.)

          The Supreme Court, however, has recognized exceptions to this  
            rule, "when 'special needs, beyond the normal need for law  
            enforcement, make the warrant and probable-cause requirement  
            impracticable.' "  (Ibid.)  Generally, searches that have  
            non-investigatory, non-criminal purposes often fit within the  
            category of "special needs," which are subject to a balancing  
            test rather than to the more rigorous requirement of warrant  
            or consent.  (Ibid.)  Under the special needs doctrine, the  
            Court evaluated the propriety of a warrantless search by  


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            simply balancing the government's interest against the  
            individual's expectation of privacy without any requirement to  
            show particularized suspicion.  (Id. at 602.)

          This current approach to determining whether HIV testing  
            statutes are "reasonable" or not is primarily derived from two  
            of the Court's decisions from its 1989 session, Skinner v.  
            Railway Labor Executives' Ass'n, supra, 489 U.S. 602 and  
            National Treasury Employees Union v. Von Raab (1989) 489 U.S.  
            856.  The Court held in these cases that the Federal  
            Government could impose suspicionless alcohol and drug tests  
            on employees in the railroad industry and the United States  
            Customs Service.  (Id. at 679; Skinner, supra, 489 U.S. at  

          Both cases involved the application of the Fourth Amendment  
            "special needs" analysis, which allows for warrantless  
            searches of property if based upon a "reasonable" level of  
            suspicion.  Most importantly, Skinner and Von Raab extended  
            the "special needs" approach beyond searches of property  
            expanded it into intrusions into the human body.  (Skinner v.  
            Railway Labor Executives' Ass'n, supra, 489 U.S. at 602;  
            National Treasury Employees Union v. Von Raab, supra, 489 U.S.  
            at 656.)  Further, the aforementioned cases upheld personal  
            searches even in the absence of any suspicion that the  
            individuals involved were, in fact, using drugs or alcohol.   
            (Ibid.)  From this conclusion, it can be gleaned that HIV  
            testing is permitted even in the absence of any suspicion that  
            the individual tested may have HIV.

          The first case dealing with mandatory HIV testing involved an  
            accused sex offender was Government of Virgin Islands v.  
            Roberts.  [Gov't of Virgin Islands v. Roberts (D.V.I. 1991).  
            756 F. Supp. 898.]  The court in Roberts ordered an HIV test  
            for an individual merely accused, rather than convicted, of  
            rape.  (Id. at 901.)  The court allowed testing based upon the  
            magistrate's finding of probable cause that the defendant  
            exposed the alleged victim to his sexual fluids.  (Id. at  
            903.)  In its ruling, the Roberts court identified two  
            important governmental interests supporting mandatory testing  
            that "plainly eclipse[d]" the defendant's interests in  
            preventing the "search":  (a) the government's interest in  
            addressing a victim's interest in "fashioning a proper medical  
            regimen" to treat potential virus exposure, and (b) the  
            government's interest in curbing HIV transmission.  (Id. at  


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          In balancing governmental and individual privacy interests,  
            courts have generally tended to err on the side of government  
            by allowing mandatory and intrusive pre-conviction testing  
            schemes to stand.  Courts have upheld statutes designed to  
            safeguard public health provided that they further a  
            legitimate public health interest.  [Eisenstat, An Analysis of  
            the Rationality of Mandatory Testing for the HIV Antibody:   
            Balancing the Governmental Public Health Interests with the  
            Individual's Privacy Interest (1991) 52 U.Pitt. L.Rev. 327.]

           2)The California Approach to "Special Needs"  :  California,  
            specifically, in Johnetta J. v. Municipal Court (1990) 267  
            Cal. Rptr. 666, upheld the current pre-conviction HIV testing  
            statute.  In Johnetta, the State sought to have the defendant  
            involuntarily tested for HIV after she bit a sheriff's deputy  
            attempting to remove her from the courtroom.  (Id. at 668.)   
            The defendant attempted to prohibit the test on several  
            grounds, including that it was an unreasonable search and  
            seizure in violation of the Fourth Amendment to the United  
            States Constitution.  (Id. at 669.) 

          The court held that "the Fourth Amendment bars only unreasonable  
            searches, and that 'the human body is not a sanctuary in which  
            evidence may be concealed with impunity.' "  [Id. at 677,  
            quoting People v. Scott (1978) 21 Cal.3d 284, 293.]  The court  
            reasoned that public safety employees, such as peace officers,  
            firefighters and emergency medical personnel, are at a  
            constant risk of coming into contact with the body fluids of  
            an assaultive person.  This risk was found despite medical  
            opinion expressing considerable uncertainty concerning the  
            transmission of HIV through saliva.  The court felt that a  
            public safety employee who has been bit "finds little solace  
            or comfort in medical opinion that the chances of infection  
            are extremely remote . . . [and] society's interest in the  
            health and safety of its peace officers, on balance, justifies  
            the intrusion without the additional probable cause that the  
            assailant is infected."  (Id. at 681.) 

          The court also found that a showing of individualized suspicion  
            is not a constitutional floor, below which a search must be  
            presumed unreasonable.  (Id. at 679.)  Skinner v. Railway  
            Labor Executives' Ass'n, supra, 489 U.S. 602 declared that the  
            removal of blood for chemical testing is of so minimal a  


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            nature that, under certain circumstances, the intrusion can be  
            justified without probable cause in the face of a special need  
            beyond the normal requirements of law enforcement.  Referring  
            back to Schmerber, the Skinner Court noted that "the intrusion  
            occasioned by a blood test is not significant, since such  
            'tests are a commonplace in these days of periodic physical  
            examinations and experience with them teaches that the  
            quantity of blood extracted is minimal, and that for most  
            people the procedure involves virtually no risk, trauma, or  
            pain.'"  [Skinner, supra, 489 U.S. at 625, quoting Schmerber  
            v. California, supra, 384 U.S.]  "The blood test procedure has  
            become routine in our everyday life."  [Breithaupt v. Abram  
            (1957) 352 U.S. 432, 436.]  In addition thereto, "[c]ases in  
            which officers would have probable cause or some  
            individualized suspicion that their assailants were  
            AIDS-infected are rare, in the vast majority of cases the  
            officers will have no way of knowing the infection status of  
            the person who has bitten them.  Thus, a requirement of  
            probable cause that the assailant is an HIV-carrier would not  
            be practical; a reasonable solution is to test those persons  
            who assault peace officers if there is probable cause to  
            believe the officer has been exposed to the assailant's bodily  
            fluids."  (Id. at 681.) 

          Pre-conviction blood testing under the current statute is not  
            executed upon a random, innocent victim of an uncontrolled  
            testing scheme.  Testing is permitted only on persons formally  
            accused of assaults or other offenses against peace officers,  
            firefighters and emergency medical personnel resulting in the  
            transfer of bodily fluids.  "Persons committing criminal  
            offenses are generally forewarned that they are subject to  
            some intrusions on their civil liberties . . . It is the  
            defendant who initiated the operation of the statute by his or  
            her assault, thus voluntarily placing themselves in a  
            different category than the innocent or unsuspecting person."   
            (Id. at 684.) 

           3)Argument in Support  : According to the  American Federal of  
            State, County and Municipal Employees  , "Fingerprint  
            Identification Experts (FIEs) have been asked to venture out  
            of the office and into hospitals in order to gather  
            fingerprints from suspected criminals.  However, because this  
            is a new duty for FIEs, their classification does not have  
            certain protections that other law enforcement personnel  
            possess. AB 2635 would ad FIEs to the list of persons who  may  


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            seek to have an arrestee's blood tested, either voluntarily or  
            by court order, for specified communicable diseases when the  
            FIE is exposed to that arrestee's blood or bodily fluids while  
            the FIE is acting within the scope of his or her duties."

           4)Argument in Opposition  : None

           5)Prior Legislation  : 

             a)   AB 169 (Portantino), Chapter 417, Statutes of 2009,  
               added custodial officers, custody assistants, and non-sworn  
               uniformed employees of a law enforcement agency, to the  
               list of persons who may seek to have an arrestee's blood  
               tested, either voluntarily or by court order, for specified  
               communicable diseases when exposed to an arrestee's bodily  
               fluids while acting within the scope of his/her duties.

             b)   AB 2737 (Feuer), Chapter 554, Statutes of 2009, expanded  
               involuntary testing to include hepatitis B and hepatitis C,  
               and recast references from "AIDS" to "HIV."  Bodily fluids  
               that created an exposure were specified as blood, tissue,  
               mucous containing visible blood, semen and vaginal  
               secretions.  Persons who desired involuntary tested were  
               limited to those acting within the scope of his or her  

             c)   SB 2056 (Brulte), Chapter 254, Statutes of 1999,  
               expanded the conditions under which a person may be  tested  
               for HIV by permitting a deceased patient to be tested for  
               HIV without consent if a health care provider is exposed to  
               the blood or other potentially infectious material of the  

             d)   AB 1385 (Alpert), Chapter 519, Statutes of 1999, allowed  
               HIV testing to be performed on any available blood or  
               patient sample of a source patient who is unable to provide  
               informed consent, provided certain conditions are met. 

             e)   SB 1239 (Russell), Chapter 708, Statutes of 1995,  
               permitted HIV testing of blood or other tissue available  
               from a source patient without the consent of the patient if  
               a health care provider, first responder or other person has  
               experienced a significant workplace exposure to the  
               patient's blood or other infectious material. 


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          American Federation of State, County and Municipal Employees 


          Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)