BILL ANALYSIS
AB 2635
Page 1
Date of Hearing: April 20, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2635 (Portantino) - As Amended: April 5, 2010
SUMMARY : Adds a nonsworn employee of a law enforcement agency
whose job description includes 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 his or her duties.
EXISTING LAW :
1)Allows a peace officer, firefighter, custodial officer,
custody assistant, a nonsworn 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, to
do the following:
a) 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.
b) 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 professional that an exposure, including the
nature and extent of the exposure, has occurred.
AB 2635
Page 2
c) The court shall promptly conduct a hearing. If the
court finds that probable cause exists to believe that a
possible bloodborne pathogen exposure took place between
the arrestee and the peace officer, firefighter, or
emergency medical personnel, as specified, the court shall
order that the arrestee provide three specimens of blood
for testing, as provided. [Health and Safety Code Section
(HSC) 121060(a).]
2)Defines "bloodborne pathogen exposure" to be a percutaneous
injury, including, but not limited to, a needle stick or cut
with a sharp object, or the contact of non-intact skin or
mucous membranes with any of the bodily fluids, in accordance
with the most current bloodborne pathogen exposure definition
established by the federal Centers for Disease Control and
Prevention. [HSC Section 121060.1(a).]
3)Defines "bodily fluids" to include the following: blood,
tissue, mucous containing visible blood, semen, and vaginal
secretions. [HSC Section 121060.1(b).]
4)Declares the people of the State of California find that
Acquired Immune Deficiency Syndrome (AIDS), AIDS-related
conditions, and other communicable diseases pose a major
threat to the public health and safety. The health and safety
of the public, victims of sexual crimes, and peace officers,
firefighters, and custodial personnel who may come into
contact with infected persons, have not been adequately
protected by law. The purpose of this chapter is to require
that information that may be vital to the health and safety of
the public, victims of certain crimes, certain defendants and
minors, and custodial personnel, custodial medical personnel,
peace officers, firefighters and emergency medical personnel
put at risk in the course of their official duties, be
obtained and disclosed in an appropriate manner in order that
precautions can be taken to preserve their health and the
health of others or that those persons can be relieved from
groundless fear of infection. (HSC Section 121050.)
5)States every person confined in any local detention facility
who commits a battery by gassing upon the person of any peace
officer or employee of the local detention facility is guilty
of aggravated battery and shall be punished by imprisonment in
a county jail or by imprisonment in the state prison for two,
three, or four years. [Penal Code Section 243.9(a).]
AB 2635
Page 3
6)Defines "gassing" as intentionally placing or throwing, or
causing to be placed or thrown, upon the person of another any
human excrement or other bodily fluids or bodily substances or
any mixture containing human excrement or other bodily fluids
or bodily substances that result in actual contact with the
person's skin or membranes. [Penal Code Section 243.9(b).]
7)Allows a person in charge of the local detention facility to
use every available means to immediately investigate all
reported or suspected batteries by gassing, including, but not
limited to, the use of forensically acceptable means of
preserving and testing the suspected gassing substance to
confirm the presence of human excrement or other bodily fluids
or bodily substances. If there is probable cause to believe
that the inmate has committed battery by gassing, the chief
medical officer of the local detention facility, or his or her
designee, may, when he or she deems it medically necessary to
protect the health of an officer or employee who may have been
subject to a violation of this section, order the inmate to
receive an examination or test for hepatitis or tuberculosis
or both hepatitis and tuberculosis on either a voluntary or
involuntary basis immediately after the event, and
periodically thereafter as determined to be necessary by the
medical officer in order to ensure that further hepatitis or
tuberculosis transmission does not occur. These decisions
shall be consistent with an occupational exposure as defined
by the Center for Disease Control and Prevention. The results
of any examination or test shall be provided to the officer or
employee who has been subject to a reported or suspected
violation of this section. [Penal Code Section 243.9(c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)The Historical and Constitutional Framework for Involuntary
Testing : By compelling an individual to submit to an
involuntary blood test, the protection of the Fourth Amendment
to the United States Constitution is invoked. It is well
established that a blood test is a search within the meaning
of the Fourth Amendment. [See Skinner v. Railway Labor
Executives' Ass'n (1989) 489 U.S. 602, 616; Schmerber v.
California (1966) 384 U.S. 757, 767- 68 (upholding compulsory
taking of blood in order to perform warrantless blood alcohol
AB 2635
Page 4
tests).] The Fourth Amendment provides that the Federal
Government shall not infringe upon an individual's right to be
free from unreasonable searches and seizures. (See U.S.
Const., 4th Amend.)
In determining whether a search is reasonable, the United States
Supreme Court probes the circumstances surrounding the search
and examines the nature of the search itself. [Skinner v.
Railway Labor Executives' Ass'n, supra, 489 U.S. at 619
(citing United States v. Montoya de Hernandez (1985) 473 U.S.
531, 537.] Whether a search is permissible "is judged by
balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental
interests." [See Ibid. (citing Delaware v. Prouse (1979) 440
U.S. 648, 654; United States v. Martinez-Fuerte (1976) 428
U.S. 543.] The Supreme Court has consistently held that
medical examinations, including blood tests, trigger, at a
minimum, the Fourth Amendment balancing test. [See, e.g.,
Schmerber v. California, supra, 384 U.S. at 767-68
("compelled" blood testing is an intrusion constituting a
search); see also Yin v. State of California (9th Cir. 1996)
95 F.3d 864, 874 (O'Scannlain, J., concurring) ("[C]ertain
aspects of the routine physical examination at issue here
would implicate the requisite 'concerns about bodily
integrity'," and thus trigger protection under the Fourth
Amendment.).]
The purpose of the Fourth Amendment is "to guarantee the
privacy, dignity, and security of persons against certain
arbitrary and invasive acts by officers of the Government or
those acting at their direction." (Skinner v. Railway Labor
Executives' Ass'n, supra, 489 U.S. at 613-14). As such, most
government searches require a warrant issued by a judge based
upon probable cause in order to guard against arbitrary and
invasive acts. (Id. at 619.)
The Supreme Court, however, has recognized exceptions to this
rule, "when 'special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable.' " (Ibid.) Generally, searches that have
non-investigatory, non-criminal purposes often fit within the
category of "special needs," which are subject to a balancing
test rather than to the more rigorous requirement of warrant
or consent. (Ibid.) Under the special needs doctrine, the
Court evaluated the propriety of a warrantless search by
AB 2635
Page 5
simply balancing the government's interest against the
individual's expectation of privacy without any requirement to
show particularized suspicion. (Id. at 602.)
This current approach to determining whether HIV testing
statutes are "reasonable" or not is primarily derived from two
of the Court's decisions from its 1989 session, Skinner v.
Railway Labor Executives' Ass'n, supra, 489 U.S. 602 and
National Treasury Employees Union v. Von Raab (1989) 489 U.S.
856. The Court held in these cases that the Federal
Government could impose suspicionless alcohol and drug tests
on employees in the railroad industry and the United States
Customs Service. (Id. at 679; Skinner, supra, 489 U.S. at
634.)
Both cases involved the application of the Fourth Amendment
"special needs" analysis, which allows for warrantless
searches of property if based upon a "reasonable" level of
suspicion. Most importantly, Skinner and Von Raab extended
the "special needs" approach beyond searches of property
expanded it into intrusions into the human body. (Skinner v.
Railway Labor Executives' Ass'n, supra, 489 U.S. at 602;
National Treasury Employees Union v. Von Raab, supra, 489 U.S.
at 656.) Further, the aforementioned cases upheld personal
searches even in the absence of any suspicion that the
individuals involved were, in fact, using drugs or alcohol.
(Ibid.) From this conclusion, it can be gleaned that HIV
testing is permitted even in the absence of any suspicion that
the individual tested may have HIV.
The first case dealing with mandatory HIV testing involved an
accused sex offender was Government of Virgin Islands v.
Roberts. [Gov't of Virgin Islands v. Roberts (D.V.I. 1991).
756 F. Supp. 898.] The court in Roberts ordered an HIV test
for an individual merely accused, rather than convicted, of
rape. (Id. at 901.) The court allowed testing based upon the
magistrate's finding of probable cause that the defendant
exposed the alleged victim to his sexual fluids. (Id. at
903.) In its ruling, the Roberts court identified two
important governmental interests supporting mandatory testing
that "plainly eclipse[d]" the defendant's interests in
preventing the "search": (a) the government's interest in
addressing a victim's interest in "fashioning a proper medical
regimen" to treat potential virus exposure, and (b) the
government's interest in curbing HIV transmission. (Id. at
AB 2635
Page 6
903-04.)
In balancing governmental and individual privacy interests,
courts have generally tended to err on the side of government
by allowing mandatory and intrusive pre-conviction testing
schemes to stand. Courts have upheld statutes designed to
safeguard public health provided that they further a
legitimate public health interest. [Eisenstat, An Analysis of
the Rationality of Mandatory Testing for the HIV Antibody:
Balancing the Governmental Public Health Interests with the
Individual's Privacy Interest (1991) 52 U.Pitt. L.Rev. 327.]
2)The California Approach to "Special Needs" : California,
specifically, in Johnetta J. v. Municipal Court (1990) 267
Cal. Rptr. 666, upheld the current pre-conviction HIV testing
statute. In Johnetta, the State sought to have the defendant
involuntarily tested for HIV after she bit a sheriff's deputy
attempting to remove her from the courtroom. (Id. at 668.)
The defendant attempted to prohibit the test on several
grounds, including that it was an unreasonable search and
seizure in violation of the Fourth Amendment to the United
States Constitution. (Id. at 669.)
The court held that "the Fourth Amendment bars only unreasonable
searches, and that 'the human body is not a sanctuary in which
evidence may be concealed with impunity.' " [Id. at 677,
quoting People v. Scott (1978) 21 Cal.3d 284, 293.] The court
reasoned that public safety employees, such as peace officers,
firefighters and emergency medical personnel, are at a
constant risk of coming into contact with the body fluids of
an assaultive person. This risk was found despite medical
opinion expressing considerable uncertainty concerning the
transmission of HIV through saliva. The court felt that a
public safety employee who has been bit "finds little solace
or comfort in medical opinion that the chances of infection
are extremely remote . . . [and] society's interest in the
health and safety of its peace officers, on balance, justifies
the intrusion without the additional probable cause that the
assailant is infected." (Id. at 681.)
The court also found that a showing of individualized suspicion
is not a constitutional floor, below which a search must be
presumed unreasonable. (Id. at 679.) Skinner v. Railway
Labor Executives' Ass'n, supra, 489 U.S. 602 declared that the
removal of blood for chemical testing is of so minimal a
AB 2635
Page 7
nature that, under certain circumstances, the intrusion can be
justified without probable cause in the face of a special need
beyond the normal requirements of law enforcement. Referring
back to Schmerber, the Skinner Court noted that "the intrusion
occasioned by a blood test is not significant, since such
'tests are a commonplace in these days of periodic physical
examinations and experience with them teaches that the
quantity of blood extracted is minimal, and that for most
people the procedure involves virtually no risk, trauma, or
pain.'" [Skinner, supra, 489 U.S. at 625, quoting Schmerber
v. California, supra, 384 U.S.] "The blood test procedure has
become routine in our everyday life." [Breithaupt v. Abram
(1957) 352 U.S. 432, 436.] In addition thereto, "[c]ases in
which officers would have probable cause or some
individualized suspicion that their assailants were
AIDS-infected are rare, in the vast majority of cases the
officers will have no way of knowing the infection status of
the person who has bitten them. Thus, a requirement of
probable cause that the assailant is an HIV-carrier would not
be practical; a reasonable solution is to test those persons
who assault peace officers if there is probable cause to
believe the officer has been exposed to the assailant's bodily
fluids." (Id. at 681.)
Pre-conviction blood testing under the current statute is not
executed upon a random, innocent victim of an uncontrolled
testing scheme. 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 . . . It is the
defendant who initiated the operation of the statute by his or
her assault, thus voluntarily placing themselves in a
different category than the innocent or unsuspecting person."
(Id. at 684.)
3)Argument in Support : According to the American Federal of
State, County and Municipal Employees , "Fingerprint
Identification Experts (FIEs) have been asked to venture out
of the office and into hospitals in order to gather
fingerprints from suspected criminals. However, because this
is a new duty for FIEs, their classification does not have
certain protections that other law enforcement personnel
possess. AB 2635 would ad FIEs to the list of persons who may
AB 2635
Page 8
seek to have an arrestee's blood tested, either voluntarily or
by court order, for specified communicable diseases when the
FIE is exposed to that arrestee's blood or bodily fluids while
the FIE is acting within the scope of his or her duties."
4)Argument in Opposition : None
5)Prior Legislation :
a) AB 169 (Portantino), Chapter 417, Statutes of 2009,
added custodial officers, custody assistants, and non-sworn
uniformed employees of a law enforcement agency, 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 his/her duties.
b) AB 2737 (Feuer), Chapter 554, Statutes of 2009, expanded
involuntary testing to include hepatitis B and hepatitis C,
and recast references from "AIDS" to "HIV." Bodily fluids
that created an exposure were specified as blood, tissue,
mucous containing visible blood, semen and vaginal
secretions. Persons who desired involuntary tested were
limited to those acting within the scope of his or her
duties.
c) SB 2056 (Brulte), Chapter 254, Statutes of 1999,
expanded the conditions under which a person may be tested
for HIV by permitting a deceased patient to be tested for
HIV without consent if a health care provider is exposed to
the blood or other potentially infectious material of the
deceased.
d) AB 1385 (Alpert), Chapter 519, Statutes of 1999, allowed
HIV testing to be performed on any available blood or
patient sample of a source patient who is unable to provide
informed consent, provided certain conditions are met.
e) SB 1239 (Russell), Chapter 708, Statutes of 1995,
permitted HIV testing of blood or other tissue available
from a source patient without the consent of the patient if
a health care provider, first responder or other person has
experienced a significant workplace exposure to the
patient's blood or other infectious material.
AB 2635
Page 9
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744