BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
SB 531 (Rubio)
Hearing Date: 05/09/2011 Amended: 04/27/2011
Consultant: Jolie Onodera Policy Vote: Public Safety 7-0
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BILL SUMMARY: SB 531 would require a defendant to be tested for
the human immunodeficiency virus (HIV) within 48 hours of the
information or indictment being presented if the victim of a
forcible sex offense requests the testing. This bill would also
require the local health officer to disclose the HIV test
results as soon as practicable to the victim and defendant.
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Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
HIV testing within Unknown; potentially significant General*
48 hours of indictment court costs to expedite
hearing process;
potential reimbursable local health
costsGeneral
*Trial Court Trust Fund
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STAFF COMMENTS: This bill meets the criteria for referral to the
Suspense File.
Existing federal law provides that the U.S. Attorney General may
issue 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. California
local governments have received approximately $2 million to $5
million annually over the past several years in Office on
Violence Against Women (OVW) Arrest Program grant awards.
A state or local government must certify that it has a law or
regulation that meets federal eligibility criteria or the entity
will not be entitled to five percent of the funds it has been
allocated. Five percent of the federal grant funds received
would equate to a $250,000 reduction in federal grant funds
received statewide. To meet federal requirements, the state must
certify that if a victim requests an HIV test of a defendant
against whom information or an indictment has been presented for
a crime in which the defendant is alleged to have committed a
forcible sex offense, HIV testing must be administered not later
than 48 hours after the date on which the information or
SB 531 (Rubio)
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indictment is presented. Further, notification to the victim and
defendant must be provided as soon as practicable (42 U.S.C.
§3796gg-4). This bill is intended to conform to these federal
requirements.
Under existing state law, when a defendant has been charged by
complaint, information, or indictment with a crime, the court,
at the request of the victim, may issue a search warrant for the
purpose of testing the defendant's blood with an HIV test only
under specific circumstances. The court must find that there is
probable cause to believe that the defendant committed the
offense, and that there is probable cause to believe that the
HIV has been transferred from the defendant to the victim. 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
indictment is presented. This bill would not result in
additional HIV testing, as existing law already allows a victim
to request an assailant to be tested, but would require the
existing testing process to be expedited.
According to the Judicial Branch, under the existing process by
which a probable cause hearing must first be conducted prior to
a search warrant being issued to authorize an HIV test, the
ability to meet the 48-hour time constraint would place an undue
burden on the courts, resulting in significant costs associated
with scheduling expedited court hearings and corollary staffing
costs required to meet the compressed timelines proposed under
the provisions of this bill. Costs are unknown but could be
significant and would be dependent on the number of HIV tests
authorized and the jurisdictions in which the tests would be
administered. Staff notes the author is working with the
Judicial Branch to offer amendments to address the timing issue,
as well as to ensure federal compliance is maintained with the
proposed amendments. If resolved, the Judicial Branch does not
anticipate any fiscal impact to the courts.
This bill requires the local health officer to administer the
HIV test within the 48-hour timeframe, as well as disclose the
test results to the victim who requested the test and to the
accused who was tested as soon as practicable. To the extent the
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Page 4
expedited time period requires overtime and/or additional local
health officer resources to meet the 48-hour timeframe, this
would impose a higher level of service on local health officers
and could result in state-mandated local reimbursable costs of
an unknown amount.