BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2635 ( Portantino) 5
As Amended April 5, 2010
Hearing date: June 29, 2010
Health and Safety Code
SM:dl
INVOLUNTARY AIDS TESTING:
NON-SWORN FINGERPRINT COLLECTERS
HISTORY
Source: American Federation of State, County, and Municipal
Employees, AFL-CIO
Prior Legislation: AB 169 (Portantino) - Ch. 147, Stats. 2009
AB 2737 (Feuer) - Ch. 554, Stats. 2008
AB 2423 (Cardenas) - Ch. 342, Stats. 2002
SB 2056 (Brulte) - Ch. 254, Stats. 1998
AB 1385 (Alpert) - Ch. 519, Stats. 1998
SB 1239 (Russell) - Ch. 708, Stats. 1994
Support: AFSCME Local 3090
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD NON-SWORN EMPLOYEES OF A LAW ENFORCEMENT AGENCY WHOSE JOB
DESCRIPTION ENTAILS THE COLLECTION OF FINGERPRINTS BE ADDED TO
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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 THEIR DUTIES?
PURPOSE
The purpose of this bill is to add non-sworn employees of a law
enforcement agency whose job description entails 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 their
duties.
Existing law provides that any peace officer, firefighter,
custodial officer, as defined, custody assistant, as defined,
non-sworn 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, as defined in Section
121060.1, shall do the following:
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 in this chapter.
If voluntary informed consent is not given in
writing, the affected individual may petition, ex
parte, the court for an order requiring testing as
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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. (Health &
Safety Code 121060 (a).)
Existing law provides that the court shall promptly conduct a
hearing upon a petition filed pursuant to the above provisions.
If the court finds that probable cause exists to believe that
a possible bloodborne pathogen exposure, as defined in Section
121060.1, took place between the arrestee and the peace
officer, firefighter, custodial officer, as defined, custody
assistant, as defined, a non-sworn uniformed employee of a law
enforcement agency whose job entails the care or control of
inmates in a detention facility, or emergency medical
personnel, as specified, the court shall order that the
arrestee provide three specimens of blood for testing as
specified. (Health & Safety Code 121060 (b).)
Existing law states that, except as provided below, copies of
the test results shall be sent to the arrestee, each peace
officer, firefighter, custodial officer, as defined, custody
assistant, as defined, non-sworn uniformed employee of a law
enforcement agency whose job entails the care or control of
inmates in a detention facility, and emergency medical
personnel named in the petition and his or her employing
agency, officer, or entity, and if the arrestee is incarcerated
or detained, to the officer in charge and the chief medical
officer of the facility where the person is incarcerated or
detained. (Health & Safety Code 121060 (c)(1).)
Existing law states that the person whose sample was tested,
shall be advised that he or she will be informed of the
hepatitis B, hepatitis C, and HIV test results only if he or she
wishes to be so informed. If the person consents to be informed
of the hepatitis B, hepatitis C, and HIV test results, then he
or she shall sign a form documenting that consent. The person's
refusal to sign that form shall be construed to be a refusal to
be informed of the hepatitis B, hepatitis C, and HIV test
results. (Health & Safety Code 121060 (c)(2).)
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Existing law states that, except as otherwise provided under
this section, all confidentiality requirements regarding medical
records shall apply to the test results obtained. (Health &
Safety Code 121060 (c)(3).)
This bill adds nonsworn employees of a law enforcement agency
whose job description entails 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 their duties.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
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residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
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adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
AFSCME has brought to my attention that there are
other employees who come in contact with arrestees who
are frequently exposed to blood and other bodily
fluids who are not covered by this provision of law.
AB 2635 will add employees of a law enforcement agency
whose duties include collection of fingerprints.
Last year I authored AB 169, a measure that included
non-sworn uniformed officers to the category of
employees (law enforcement and emergency medical
services personnel) who after exposure to an arrestees
bodily fluids, may have that arrestee's blood tested,
either voluntarily or by court order, for specified
communicable diseases. AB 2635 corrects an oversight
of employees of a law enforcement agency that take
fingerprints of arrestees. These employees frequently
----------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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come in contact with the blood and bodily fluids of
arrestees during the booking and fingerprinting
process.
2. Background
This bill was heard by the Senate Health Committee on June 16,
2010 where it passed (8-0). Last year both this Committee and
the Senate Health Committee heard and approved a similar bill to
add other non-sworn employees 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 their duties.
(AB 169 (Portantino) - Ch. 147, Stats. 2009.) The analysis
prepared by the Senate Health Committee last year of AB 169
includes the following background information:
Background
According to the National Institute for Occupational
Safety and Health, exposures to blood and other body
fluids occur across a wide variety of occupations.
Health care workers, as well as emergency response
and public safety personnel, can be exposed to blood
through needlestick and other sharps injuries, as
well as through mucous membrane and skin exposures.
The pathogens of primary concern for the CDC (Centers
for Disease Control) and the National Institute for
Occupational Safety and Health are the human
immunodeficiency virus (HIV), hepatitis B virus
(HBV), and hepatitis C virus (HCV). According to CDC
recommendations, wounds and skin sites that have been
in contact with blood or bodily fluids should be
washed with soap and water; and mucous membranes
should be flushed with water. Immediate evaluation
must be performed by a health care professional. The
evaluation should determine the type of exposure,
infectious status of the source, and the
susceptibility of the exposed person in order to
determine the treatment course.
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Post-exposure prophylaxis
Post-exposure prophylaxis (PEP) is a short-term
treatment to reduce the likelihood of infection after
exposure to a number of contagious diseases,
including HIV, HBV, and HCV. PEP is considered a
second line of defense when preventive efforts have
failed or were not possible, as is the case with
sexual assault or occupational exposure. In the case
of HIV, PEP typically involves providing one or
several anti-HIV drugs within 72 hours of exposure,
which are then taken for a four- to six-week period.
According to the World Health Organization (WHO), in
order for PEP to be most effective in preventing HIV
infection, treatment should be commenced as soon as
possible after exposure and, ideally, within two to
four hours. One of the first examples of PEP
effectiveness was reported in a 1995 study, which
showed fewer HIV infections after occupational
exposure among health care workers who used PEP
versus those who took no prophylaxis after exposure.
A recent Canadian study found that, of 160 patients
who had been exposed to HIV and received PEP
treatment, only one infection was reported.
CDC recommendations for HBV exposure include the
initiation of the hepatitis B vaccine series to an
unvaccinated person who has been exposed. PEP with
hepatitis B immune globulin (HBIG) and/or hepatitis B
vaccine series should be considered after an
evaluation of the HBV status of the source and the
vaccination and vaccine-response status of the exposed
person. According to the CDC, in the occupational
setting, multiple doses of PEP for HBV, initiated
within one week following exposure, provides an
estimated 75 percent protection from infection.
According to the CDC, the estimated risk for
infection after a needlestick or cut exposure to
HCV-infected blood is approximately 1.8 percent.
Additionally, several studies have attempted to
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assess the effectiveness of potential post-exposure
treatment for HCV, but have been difficult to
interpret. No clinical trials have been conducted to
assess postexposure use of antiviral agents
(interferon) to prevent HCV infection, and antivirals
are not FDA approved for this use. The CDC states
that an established infection might need to be
present before interferon can be an effective
treatment.
3. Involuntary AIDS Testing Upheld in California
California courts have determined that the involuntary testing
scheme in Health and Safety Code Sections 101050 et seq., falls
within the "special needs" exception to the Fourth Amendment
right against unreasonable searches and seizures. (Johnetta J.
v. Municipal Court (1990) 218 Cal. App. 3d 1255.) (The Court in
Johnetta J. construed former Health and Safety Code Sections
199.5 et seq., which were added by initiative (Prop. 96),
approved by the electorate on Nov. 8, 1988. It is the
predecessor of Health and Safety Code Sections 121050 et seq.)
The Court stated:
The complex social realities of AIDS which have given
rise to Proposition 96 have also given rise to careful
scrutiny of petitioner's challenge to the statute. In
the words of one New York court, "AIDS is a terrible
and tragic reality in our . . . nation [] and world.
Although many approach AIDS victims with sympathy and
compassion, AIDS has all too frequently been the
occasion for discrimination, stigmatization, and
hysteria. As an institution which is and should be a
bulwark against discrimination of all kinds, the court
system must be especially wary about attacks on
individual and social rights made in the guise of
health-related AIDS claims. [para.] [T]he potential
for misuse . . . cannot be overlooked, particularly
when coupled with possible racism or homophobia, given
the composition of the major groups 'at risk' for
AIDS." The " 'devastating effects of [AIDS] and
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widespread lack of knowledge about it have produced
deep anxieties, and considerable hysteria, about the
disease and those [who] suffer from it. . . .' " "
'AIDS is the modern day equivalent of leprosy. AIDS,
or a suspicion of AIDS, can lead to discrimination in
employment, education, housing and even medical
treatment.' "
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Skinner itself was not decided without a dissenting
voice cautioning that "[h]istory teaches that grave
threats to liberty often come in times of urgency,
when constitutional rights seem too extravagant to
endure. The World War II relocation-camp cases,
Hirabayashi v. United States [1943] 320 U.S. 81;
Korematsu v. United States [1944] 323 U.S. 214 and
the Red Scare and McCarthy-Era internal subversion
cases, Schenck v. United States [1919] 249 U.S. 47;
Dennis v. United States [1951] 341 U.S. 494 are only
the most extreme reminders that when we allow
fundamental freedoms to be sacrificed in the name of
real or perceived exigency, we invariably come to
regret it."
This is not such a case. The electorate has enacted
a statute which is narrowly drawn to respond to a
serious state interest. Rather than a blanket
testing requirement of entire classes of persons, or
an exclusion from society, occupation, or housing of
persons infected with the AIDS virus, Proposition 96
applies only when (1) a person is charged in a
criminal complaint with assaulting or otherwise
interfering with a public safety employee and (2) the
assailant's conduct has resulted in the transfer of
bodily fluids to that employee. Testing cannot occur
until a court is petitioned and holds a hearing, at
which the court must find probable cause of a fluid
transfer. Testing must be accomplished in a
medically approved manner, and its results are
subject to strict rules of nondisclosure.
We also note that petitioner is not a random,
innocent victim of an uncontrolled testing scheme.
Under the statutory procedure at issue, 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
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committing criminal offenses are generally forewarned
that they are subject to some intrusions on their
civil liberties. For example, even prior to any
conviction they are subject to arrest, to pretrial
incarceration (subject to having to post reasonable
bail if they can do so, or release on their own
recognizance if they qualify), to compulsory court
appearances, and to reasonable searches and seizures
of their persons, houses, papers and effects. In
appropriate cases, blood samples may be obtained from
the accused. Petitioner initiated the operation of
the statute by her assault upon the deputy, thus
voluntarily placing herself in a different category
than the innocent or unsuspecting person she
hypothecates as a potential victim of a renegade
testing scheme.
Accordingly, we hold that with regard to public
safety employees suffering subcutaneous bites in the
course of their duties, Proposition 96's mandatory
scheme of blood testing does not violate the Fourth
Amendment or the California right of
privacy.(Johnetta J. v. Municipal Court, 218
Cal.App.3d 1255, 1284-1285 (1990).)
4. Effect of This Bill
Existing law establishes a procedure whereby any peace
officer, firefighter, custodial officer, as defined,
custody assistant, as defined, non-sworn uniformed employee
of a law enforcement agency whose job entails the care or
control of inmates in a detention facility, or emergency
medical personnel, is exposed to an arrestee's blood or
bodily fluids, may request a court order to have the
arrestee's blood tested for bloodborne diseases. (Health
and Safety Code section 121060.) This bill would allow "
non-sworn employees of a law enforcement agency whose job
description entails the collection of fingerprints " to
utilize the same procedure, if exposed to an arrestee's
blood or bodily fluids, to learn if they have been exposed
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to a potentially life-threatening bloodborne disease in the
course of performing their job.
IS IT CONSISTENT WITH THE INTENT OF THE ORIGINAL LEGISLATION
ALLOWING SPECIFIED PUBLIC SAFETY EMPLOYEES WHO HAVE COME IN
CONTACT WITH AN ARRESTEE'S BLOOD OR BODILY FLUIDS THE RIGHT TO
HAVE THE ARRESTEE TESTED FOR BLOODBORNE DISEASES TO EXTEND THAT
RIGHT TO NON-SWORN EMPLOYEES OF A LAW ENFORCEMENT AGENCY WHOSE
JOB DESCRIPTION ENTAILS THE COLLECTION OF FINGERPRINTS?
WOULD THE RATIONALE IN THE COURT CASE APPROVING THAT PROCEDURE
APPLY EQUALLY TO THESE ADDITIONAL PUBLIC SAFETY EMPLOYEES?
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