BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 531 (Rubio) 1
As Amended March 21, 2011
Hearing date: April 26, 2011
Penal Code
MK:dl
SEARCH WARRANTS: HIV TESTING
HISTORY
Source: California State Sheriffs' Association
Prior Legislation: AB 2794 (Reyes) - Chapter 831, Stats. 2002
Support: The Sheriff of Alameda County; The Sheriff of Amador
County; The Sheriff of Butte County; The Sheriff of
Kern County; The Sheriff of Mono County; The Sheriff
of Orange County; The Sheriff of Placer County; The
Sheriff of Santa Cruz County; The Sheriff of Shasta
County; The Sheriff of Siskiyou; The Sheriff of
Stanislaus County; County; The Sheriff of Tulare
County; The Sheriff of Tuolumne County; California
District Attorneys Association; Crime Victims United of
California
Opposition:None known (as proposed to be amended)
(ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
COMMITTEE: See Comment 3.)
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SB 531 (Rubio)
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KEY ISSUE
SHOULD THE LAW REQUIRE A DEFENDANT TO BE TESTED FOR HIV WITHIN
48 HOURS OF THE INFORMATION OR INDICTMENT IF THE VICTIM OF A
FORCIBLE SEX OFFENSE REQUESTS THE TESTING?
PURPOSE
The purpose of this bill is to comply with federal law and
require, if the victim of a forcible sex offense requests, a
defendant to be tested for HIV within 48 hours after the date on
which the indictment or information is presented.
Existing federal law provides that the U.S. Attorney General may
make grants to eligible states to encourage arrest policies and
enforcement of protective orders provided that the state meets
certain requirements regarding arrest and restraining order
policies in domestic violence and sex offense cases and that the
state has specified laws enacted. A state will lose 5% of its
funds unless the state or local government that it has a law or
regulation that requires:
The State or unit of local government at the request of
a victim to administer to a defendant, against whom an
information or indictment is presented for a crime in which
by force or threat of force the perpetrator compels the
victim to engage in sexual activity, testing for the
immunodeficiency virus (HIV) not later than 48 hours after
the date on which the information or indictment is
presented;
o as soon as practicable notification to the
victim, or parent and guardian of the victim, and
defendant of the testing results; and
o follow-up tests for HIV as may be
medically appropriate, and that as soon as
practicable after each such test the results be made
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available in accordance with subparagraph (B); or
Gives the Attorney General assurances that its laws
and regulations will be in compliance with requirements of
paragraph
o Within the later of
§ the period ending on the date on
which the next session of the State legislature
ends; or
§ 2 years (42 USC § 3796hh(d).)
Existing law provides that when a defendant has been charged by
complaint, information, or indictment with a crime, or a minor
is the subject of a petition filed in juvenile court alleging
the commission of a crime, the court, at the request of the
victim, may issue a search warrant for the purpose of testing
the accused's blood with any HIV test, as defined in section
120775 of the Health and Safety Code only under the following
circumstances: when the court finds, upon the conclusion of a
hearing, as specified, or in those cases in which a preliminary
hearing is not required to be held, the court also finds that
there is probable cause to believe that the accused committed
the offense, and that there is probable cause to believe that
blood, semen, or any other body fluid as capable of transmitting
the human immunodeficiency virus has been transferred from the
accused to the victim, as specified. (Penal Code § 1524.1.)
Existing law authorizes a court, at the request of a victim of
specified uncharged sex offenses, to issue a search warrant for
the purpose of testing an accused person, or a minor who is
subject to a delinquency petition, for AIDS/HIV, as specified.
(Penal Code § 1524.1(b)(2).)
This bill provides that if a victim requests an HIV test of a
defendant against whom an information or indictment has been
presented for a crime in which, by force or threat of force,
the defendant is alleged to have compelled the victim to engage
in sexual activity, the HIV test shall be administered not later
than 48 hours after the date on which the information or
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indictment is presented.
This bill provides that as soon as practicable, the victim or,
if the victim is a minor, his or her parent or guardian, shall
be notified of the testing results.
This bill provides that follow-up tests for HIV shall be
administered as may be medically appropriate, and as soon as
practicable after each test, and the results of those tests
shall be made available to the victim, or if the victim is a
minor, to his or her parent or guardian.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
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In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 531 which would protect victims of sexual assault by
adding a 48 hour time element to California law
requiring the testing of a defendant for the HIV virus
against whom information or indictment has been
presented for a crime in which by force or threat of
force the perpetrator compels the victim to engage in
sexual activity. Additionally, this bill would ensure
that California is conforming to federal law and that
recipients of federal domestic violence grants in
California avoid penalties for not providing victims
with the federal standard of HIV testing their
assailants.
2. Federal Requirement
42 U.S.C. §3796hh requires states to enact specified provisions
in order to be eligible to receive federal funding to support
law enforcement programs for the protection of domestic violence
and sexual assault victims. Specifically, it provides that a
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local government will lose 5% of the funds for which they are
eligible unless they certify that it has a law or regulation
that requires:
ÝT]he State or unit of local government at the request
of a victim to administer to a defendant, against whom
an information or indictment is presented for a crime
in which by force or threat of force the perpetrator
compels the victim to engage in sexual activity, the
testing for the immunodeficiency virus (HIV) no later
than 48 hours after the date on which the information
or indictment is presented.
ÝA]s soon as practicable notification to the victim, or
parent and guardian of the victim, and the defendant of
the testing results. (42 USC § 3796hh(d).)
According to the sponsor, at least one county has lost 5% of the
funding from the federal government since California did not
have these specific provisions in its law providing for HIV
testing at the request of victims. This bill is intended to
meet that federal requirement.
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3. Amendments
The amendments to be taken in Committee are to clarify that the
due process rights that currently exist for the taking of the
sample to be tested for HIV still exist after the 48 hour
requirement in this bill. With these amendments, potential
opposition is removed. Specifically they are:
Page 5, line 11, after "tested" insert: "as soon as
practicable"
Page 5 line, 38, strike out "Notwithstanding any other law, if a
victim" and insert: "If a victim, pursuant to subdivision (b),
On page 6, line 4 strike out "As soon as practicable, the victim
or, if the victim is a," and strike out lines 5-9,
inclusive.***************
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