BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 169 (Portantino)
As Amended April 14, 2009
Hearing date: June 23, 2009
Health and Safety Code
SM:br
INVOLUNTARY AIDS TESTING: CUSTODIAL OFFICERS
HISTORY
Source: Laborers International Union of North America - Local
777
Prior Legislation: 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; SEIU; California Peace Officers Association;
California Police Chiefs Association; California Correctional
Supervisors Association
Opposition:None
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD CUSTODIAL OFFICERS, CUSTODY ASSISTANTS, AS DEFINED, AND
NONSWORN UNIFORMED EMPLOYEES OF LAW ENFORCEMENT AGENCIES WHOSE JOB
ENTAILS THE CARE OR CONTROL OF INMATES IN A DETENTION FACILITY, BE
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ADDED 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?
PURPOSE
The purpose of this bill is to add custodial officers, custody
assistants, as defined, and nonsworn uniformed employees of law
enforcement agencies whose job entails the care or control of
inmates in a detention facility, 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, 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
provided in this chapter. The petition shall
include a written certification by a health care
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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, or emergency medical personnel, as
specified in this section, 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, 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).)
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 custodial officers, custody assistants, as
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defined, and nonsworn uniformed employees of law enforcement
agencies whose job entails the care or control of inmates in a
detention facility, 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
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
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
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
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design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
AB 169 was introduced to include custodial officers,
custody assistants and nonsworn uniformed employees
who have care or control of inmates in a detention
facility to be included the class of employees who
can request court ordered testing of an arrestee when
they are exposed to a blood borne pathogen from the
arrestee.
Knowing whether an arrestee has a particular
infectious disease can significantly improve the
overall medical and psychological care provided to
individuals who sustain exposure to a blood borne
pathogen. Although there is no absolute guarantee
that transmission of infection has not occurred, when
the source person tests negative for a communicable
disease, prophylactic treatment of the individual
exposed may not be necessary to prevent infection.
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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2. Background
This bill was heard by the Senate Health Committee on May 20,
2009 where it passed (6-2). The analysis prepared by the Senate
Health Committee includes the following background information:
According to the author, custodial officers often
come in contact with bodily fluids of persons who
have been arrested, and this bill will extend the
benefits of existing testing provisions to these
workers.
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.
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
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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
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
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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
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
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employment, education, housing and even medical
treatment.' "
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."
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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
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
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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, 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, 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 "custodial officers,
custody assistants, as defined, and nonsworn uniformed
employees of law enforcement agencies whose job entails the
care or control of inmates in a detention facility" to
utilize the same procedure, if exposed to an arrestee's
blood or bodily fluids, to learn if they have been exposed
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 CUSTODIAL OFFICERS, CUSTODY ASSISTANTS, AS DEFINED, AND
NONSWORN UNIFORMED EMPLOYEES OF LAW ENFORCEMENT AGENCIES WHOSE
JOB ENTAILS THE CARE OR CONTROL OF INMATES IN A DETENTION
FACILITY?
WOULD THE RATIONALE IN THE COURT CASE APPROVING THAT PROCEDURE
APPLY EQUALLY TO THESE ADDITIONAL PUBLIC SAFETY EMPLOYEES?
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