7 LONG TITLE
8 General Description:
9 This bill creates a procedure for HIV testing of an alleged sexual offender if the alleged
10 sexual offender refuses testing.
11 Highlighted Provisions:
12 This bill:
13 ▸ provides a process to obtain a court order if an alleged sexual offender refuses an
14 HIV test at the request of an alleged victim.
15 Money Appropriated in this Bill:
17 Other Special Clauses:
19 Utah Code Sections Affected:
21 76-5-502, as last amended by Laws of Utah 2021, Chapter 58
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 76-5-502 is amended to read:
25 76-5-502. Request for testing -- Mandatory testing -- Liability for costs.
26 (1) (a) An alleged victim of [
27 victim who is a minor, or the guardian of an alleged victim who is a vulnerable adult as defined
28 in Section 62A-3-301 may request that the alleged sexual offender against whom [
29 indictment, information, or petition is filed or regarding whom the arrest has been made be
30 tested to determine whether the alleged offender is an HIV positive individual.
31 (b) If the alleged victim under Subsection (1)(a) has requested that the alleged offender
32 be tested, the alleged offender shall submit to being tested not later than 48 hours after [
33 request is conveyed to the alleged offender under Subsection (2), the information or indictment
34 is filed, or an order or warrant requiring a test is signed, whichever is earlier.
38 (2) A request for testing under Subsection (1) may be made by the alleged victim, or by
39 another individual on behalf of the alleged victim, by written communication to a prosecuting
40 attorney, victim advocate, or other law enforcement officer involved in the investigation,
41 information, or indictment. The recipient of the request, within one business day after receipt,
42 shall convey the request to the alleged offender's counsel of record, if the offender is
43 represented by counsel, or to the alleged offender, if the alleged offender is not represented by
45 (3) (a) If the alleged offender refuses to be tested after a request by the alleged victim
46 under Subsection (1):
47 (i) the alleged victim, another individual on behalf of the alleged victim, or the
48 prosecuting attorney may petition the district court for an order requiring the alleged offender
49 to submit to testing to determine whether the alleged offender is an HIV positive individual; or
50 (ii) a law enforcement agency involved in the investigation, information, or indictment
51 may submit on behalf of the victim, by electronic or other means, an ex parte request for a
52 warrant ordering testing to determine whether the alleged offender is an HIV positive
54 (b) If a petition is filed under Subsection (3)(a)(i), the petitioning individual shall cause
55 the petition to be served on the alleged offender.
56 (c) The court may decide the petition on motion or, if the court determines material
57 facts are in dispute, schedule a hearing.
58 (d) If the court finds that the alleged offender refused to consent to the testing or was
59 unable to consent, the court shall issue an order or warrant requiring the alleged offender to
60 submit to testing within 48 hours to determine whether the alleged offender is an HIV positive
61 individual, and that reasonable force may be used to obtain the sample, if necessary.
62 (e) If the court schedules a hearing, the court shall:
63 (i) set a time for the hearing within 10 days after the petition is filed;
64 (ii) give the petitioner and the alleged offender notice of the hearing at least 48 hours
65 prior to the hearing;
66 (iii) notify the alleged offender that the alleged offender may have an attorney present
67 at the hearing; and
68 (iv) conduct the hearing in camera.
69 (f) The court may not require the alleged victim to attend the hearing in person absent
70 good cause.
71 (4) A sample drawn in accordance with an order or warrant issued under this section
72 shall be sent for testing to:
73 (a) the Department of Health;
74 (b) the local health authority; or
75 (c) a qualified medical laboratory.
77 section shall be provided by the testing entity to the prosecuting attorney, who shall, within one
78 business day after receipt, convey the results of the test to:
82 defined in Section 62A-3-301;
87 the alleged offender shall be sent as soon as practicable to the prosecuting attorney, who shall,
88 within one business day after receipt, convey the results of the test to:
93 defined in Section 62A-3-301;
99 corrections facility, the alleged offender shall be tested while in confinement.
101 the [
102 facility to be taken, either by the facility's medical personnel or by a qualified third party, and
103 shall forward the [
104 (i) the Department of Health; [
107 (ii) the local health authority; or
108 (iii) a qualified medical laboratory.
109 (b) The testing entity that receives the [
110 shall provide the result to the [
111 release to the parties as described in Subsection [
116 of testing and any legal proceedings necessary to obtain an order or warrant authorizing the
117 testing, unless the alleged offender is indigent. [
118 costs will [