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 _________________________________________________________________ ____ 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. _________________________________________________________________ ____ 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 _________________________________________________________________ ____ 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) Page 3 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 SB 531 (Rubio) 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.