BILL ANALYSIS AB 2635 Page 1 Date of Hearing: April 20, 2010 Counsel: Nicole J. Hanson ASSEMBLY COMMITTEE ON PUBLIC SAFETY 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 provided. 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. AB 2635 Page 2 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).] AB 2635 Page 3 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 AB 2635 Page 4 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 Amendment.).] 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 AB 2635 Page 5 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 634.) 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 AB 2635 Page 6 903-04.) 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 AB 2635 Page 7 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 AB 2635 Page 8 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 duties. 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 deceased. 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. AB 2635 Page 9 REGISTERED SUPPORT / OPPOSITION : Support American Federation of State, County and Municipal Employees Opposition None Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916) 319-3744