BILL NUMBER: SB 531 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 21, 2011
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 amended, 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 require, 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 to be administered not later than 48 hours
after the date on which the information or indictment is presented.
The bill would require the victim or, if the victim is a minor, his
or her parents, to be notified of the testing results as soon as
practicable. The bill would require followup HIV tests to be
administered as may be medically appropriate. Because the bill would
impose additional duties on local governmental entities, it would
create a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would make technical, nonsubstantive changes to this
provision.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
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 human immunodeficiency virus (HIV)
. 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 , and to comply with provisions of
federal law regarding testing as a condition of receiving federal
grants . 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
Care Services in appropriate regulations as capable of
transmitting the human immunodeficiency virus
HIV 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 Care Services in
appropriate regulations as capable of transmitting the human
immunodeficiency virus HIV 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).
(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) 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) 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.
(l) Notwithstanding any other law, 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. As soon as practicable, the victim or, if the victim is a
minor, his or her parent or guardian, shall be notified of the
testing results. Followup tests for HIV shall be administered as may
be medically appropriate, and as soon as practicable after each test,
and the results of those tests shall be made available to the victim
or, if the victim is a minor, to his or her parent or guardian.
SEC. 2. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.