BILL NUMBER: SB 531	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Rubio

                        FEBRUARY 17, 2011

   An act to amend Section 1524.1 of the Penal Code, relating to
search warrants.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 531, as introduced, Rubio. Search warrants: HIV testing.
    Existing law provides that when a defendant or minor has been
charged with a specified sexual offense, the court may, under certain
circumstances and at the request of the victim, issue a search
warrant for the purpose of testing the accused's blood or saliva with
any HIV test.
   This bill would make technical, nonsubstantive changes to this
provision.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1524.1 of the Penal Code is amended to read:
   1524.1.  (a) The primary purpose of the testing and disclosure
provided in this section is to benefit the victim of a crime by
informing the victim whether the defendant is infected with the HIV
virus. It is also the intent of the Legislature in enacting this
section to protect the health of both victims of crime and those
accused of committing a crime. Nothing in this section shall be
construed to authorize mandatory testing or disclosure of test
results for the purpose of a charging decision by a prosecutor, nor,
except as specified in subdivisions (g) and (i), shall this section
be construed to authorize breach of the confidentiality provisions
contained in Chapter 7 (commencing with Section 120975) of Part 4 of
Division 105 of the Health and Safety Code.
   (b) (1) Notwithstanding the provisions of Chapter 7 (commencing
with Section 120975) of Part 4 of Division 105 of the Health and
Safety Code, 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 or oral
mucosal transudate saliva 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
the hearing described in paragraph (3)  ,  or in
those cases in which a preliminary hearing is not required to be
held, 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 bodily fluid identified by the State
Department of Health Services in appropriate regulations as capable
of transmitting the human immunodeficiency virus has been transferred
from the accused to the victim.
   (2) Notwithstanding Chapter 7 (commencing with Section 120975) of
Part 4 of Division 105 of the Health and Safety Code, when a
defendant has been charged by complaint, information, or indictment
with a crime under Section 220, 261, 261.5, 262, 264.1, 266c, 269,
286, 288, 288a, 288.5, 289, or 289.5, or with an attempt to commit
any of the offenses, and is the subject of a police report alleging
the commission of a separate, uncharged offense that could be charged
under Section 220, 261, 261.5, 262, 264.1, 266c, 269, 286, 288,
288a, 288.5, 289, or 289.5, or of an attempt to commit any of the
offenses, or a minor is the subject of a petition filed in juvenile
court alleging the commission of a crime under Section 220, 261,
261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5,
or of an attempt to commit any of the offenses, and is the subject of
a police report alleging the commission of a separate, uncharged
offense that could be charged under Section 220, 261, 261.5, 262,
264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5, or of an
attempt to commit any of the offenses, the court, at the request of
the victim of the uncharged offense, may issue a search warrant for
the purpose of testing the accused's blood or oral mucosal transudate
saliva with any HIV test, as defined in Section 120775 of the Health
and Safety Code  ,  only under the following circumstances:
when the court finds that there is probable cause to believe that
the accused committed the uncharged offense, and that there is
probable cause to believe that blood, semen, or any other bodily
fluid identified by the State Department of Health Services in
appropriate regulations as capable of transmitting the human
immunodeficiency virus has been transferred from the accused to the
victim. As used in this paragraph, "Section 289.5" refers to the
statute enacted by Chapter 293 of the Statutes of 1991, penetration
by an unknown object.
   (3) (A) Prior to the issuance of a search warrant pursuant to
paragraph (1), the court, where applicable and at the conclusion of
the preliminary examination if the defendant is ordered to answer
pursuant to Section 872, shall conduct a hearing at which both the
victim and the defendant have the right to be present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (1) shall be admissible.
   (B) Prior to the issuance of a search warrant pursuant to
paragraph (2), the court, where applicable, shall conduct a hearing
at which both the victim and the defendant are present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (2) shall be admissible.
   (4) A request for a probable cause hearing made by a victim under
paragraph (2) shall be made before sentencing in the superior court,
or before disposition on a petition in a juvenile court, of the
criminal charge or charges filed against the defendant.
   (c) (1) In all cases in which the person has been charged by
complaint, information, or indictment with a crime, or is the subject
of a petition filed in a juvenile court alleging the commission of a
crime, the prosecutor shall advise the victim of his or her right to
make this request. To assist the victim of the crime to determine
whether he or she should make this request, the prosecutor shall
refer the victim to the local health officer for prerequest
counseling to help that person understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the accused, to ensure
that the victim understands both the benefits and limitations of the
current tests for HIV, to help the victim decide whether he or she
wants to request that the accused be tested, and to help the victim
decide whether he or she wants to be tested.
   (2) The Department of Justice, in cooperation with the California
District Attorneys Association, shall prepare a form to be used in
providing victims with the notice required by paragraph (1).
   (d)  (1)    If the victim decides to request HIV
testing of the accused, the victim shall request the issuance of a
search warrant, as described in subdivision (b). 
   Neither 
    (2)     Neither  the failure of a
prosecutor to refer or advise the victim as provided in this
subdivision, nor the failure or refusal by the victim to seek or
obtain counseling, shall be considered by the court in ruling on the
victim's request.
   (e) The local health officer shall make provision for
administering all HIV tests ordered pursuant to subdivision (b).
   (f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (b) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
accused unless any initially reactive test result has been confirmed
by appropriate confirmatory tests for positive reactors.
   (g) The local health officer shall have the responsibility for
disclosing test results to the victim who requested the test and to
the accused who was tested. However, no positive test results shall
be disclosed to the victim or to the accused without also providing
or offering professional counseling appropriate to the circumstances.

   (h) The local health officer and victim shall comply with all laws
and policies relating to medical confidentiality subject to the
disclosure authorized by subdivisions (g) and (i). Any individual who
files a false report of sexual assault in order to obtain test
result information pursuant to this section shall, in addition to any
other liability under law, be guilty of a misdemeanor punishable as
provided in subdivision (c) of Section 120980 of the Health and
Safety Code. Any individual as described in the preceding sentence
who discloses test result information obtained pursuant to this
section shall also be guilty of an additional misdemeanor punishable
as provided for in subdivision (c) of Section 120980 of the Health
and Safety Code for each separate disclosure of that information.
   (i)  Any   A  victim who receives
information from the health officer pursuant to subdivision (g) may
disclose the test results as the victim deems necessary to protect
his or her health and safety or the health and safety of his or her
family or sexual partner.
   (j)  Any   A  person transmitting test
results or disclosing information pursuant to this section shall be
immune from civil liability for any actions taken in compliance with
this section.
   (k) The results of any blood or oral mucosal transudate saliva
tested pursuant to subdivision (b) shall not be used in any criminal
proceeding as evidence of either guilt or innocence.