1     
HIV TESTING MODIFICATIONS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Marsha Judkins

5     
Senate Sponsor: ____________

6     

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:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          53-10-802, as renumbered and amended by Laws of Utah 2022, Chapter 430
22     

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 53-10-802 is amended to read:
25          53-10-802. Request for testing -- Mandatory testing -- Liability for costs.
26          (1) (a) An alleged victim of a sexual offense, the parent or guardian of an alleged
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 the
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 [an] the
33     request is conveyed to the alleged offender under Subsection (2), the information or indictment
34     is filed, or an order requiring a test is signed, whichever is earlier.
35          (2) A request for testing under Subsection (1) may be made by the alleged victim, or by
36     another individual on behalf of the alleged victim, by written communication to a prosecuting
37     attorney, victim advocate, or other law enforcement officer involved in the investigation,
38     information, or indictment. The recipient of the request, within one business day after receipt,
39     shall convey the request to the alleged offender's counsel of record, if the offender is
40     represented by counsel, or to the alleged offender, if the alleged offender is not represented by
41     counsel.
42          (3) (a) If the alleged offender refuses to be tested after a request by the alleged victim
43     under Subsection (1):
44          (i) the alleged victim, another individual on behalf of the alleged victim, or the
45     prosecuting attorney may petition the district court for an order requiring the alleged offender
46     to submit to testing to determine whether the alleged offender is an HIV positive individual; or
47          (ii) a law enforcement agency involved in the investigation, information, or indictment
48     may submit on behalf of the victim, by electronic or other means, an ex parte request for an
49     order for testing to determine whether the alleged offender is an HIV positive individual.
50          (b) If a petition is filed under Subsection (3)(a)(i), the petitioning individual shall cause
51     the petition to be served on the alleged offender.
52          (c) The court may decide the petition on motion or, if the court determines material
53     facts are in dispute, schedule a hearing.
54          (d) If the court finds that the alleged offender refused to consent to the testing or was
55     unable to consent, the court shall issue an order requiring the alleged offender to submit to
56     testing within 48 hours to determine whether the alleged offender is an HIV positive individual,
57     and that reasonable force may be used to obtain the sample, if necessary.
58          (e) If the court schedules a hearing, the court shall:
59          (i) set a time for the hearing within 10 days after the petition is filed;
60          (ii) give the petitioner and the alleged offender notice of the hearing at least 48 hours
61     prior to the hearing;
62          (iii) notify the alleged offender that the alleged offender may have an attorney present
63     at the hearing; and
64          (iv) conduct the hearing in camera.
65          (f) The court may not require the alleged victim to attend the hearing in person absent
66     good cause.
67          (4) A sample drawn in accordance with an order issued under this section shall be sent
68     for testing to:
69          (a) the Department of Health and Human Services;
70          (b) the local health authority; or
71          (c) a qualified medical laboratory.
72          [(c) If the alleged victim under Subsection (1)(a) requests that the alleged offender be
73     tested more than 48 hours after an information or indictment is filed, the offender shall submit
74     to being tested not later than 24 hours after the request is made.]
75          [(d)] (5) As soon as practicable, the results of [the] a test conducted pursuant to this
76     section shall be provided to:
77          [(i)] (a) the alleged victim who requested the test;
78          [(ii)] (b) the parent or guardian of the alleged victim, if the alleged victim is a minor;
79          [(iii)] (c) the legal guardian of the alleged victim if the victim is a vulnerable adult as
80     defined in Section 62A-3-301;
81          [(iv)] (d) the alleged offender; and
82          [(v)] (e) the parent or legal guardian of the alleged offender, if the alleged offender is a
83     minor.
84          [(e)] (6) If follow-up testing is medically indicated, the results of follow-up testing of
85     the alleged offender shall be sent as soon as practicable to the prosecuting attorney, who shall,
86     within one business day after receipt, convey the results of the test to:
87          [(i)] (a) the alleged victim;
88          [(ii)] (b) the parent or guardian of the alleged victim if the alleged victim is a minor;
89          [(iii)] (c) the legal guardian of the alleged victim, if the victim is a vulnerable adult as
90     defined in Section 62A-3-301;
91          [(iv)] (d) the alleged offender; and
92          [(v)] (e) the parent or legal guardian of the alleged offender, if the alleged offender is a
93     minor.
94          [(2)] (7) If the [mandatory test has not been conducted, and the] alleged offender [or
95     alleged minor offender is already] is confined in a county jail, state prison, or a secure youth
96     corrections facility, the alleged offender shall be tested while in confinement.
97          [(3)] (8) (a) The secure youth corrections facility, state prison, or county jail shall cause
98     the [blood specimen] sample of the alleged offender under Subsection (1) confined in that
99     facility to be taken, either by the facility's medical personnel or by a qualified third party, and
100     shall forward the [specimen] sample to:
101          (i) the Department of Health and Human Services; [or]
102          (ii) the local health authority; or
103          (iii) a qualified medical laboratory.
104          [(ii) an alternate testing facility, as determined by the secure youth corrections facility
105     or county jail, if testing under Subsection (3)(a)(i) is unavailable.]
106          (b) The testing entity that receives the [specimen] sample under Subsection [(3)(a)] (4)
107     shall provide the result to the [prosecutor] prosecuting attorney as soon as practicable for
108     release to the parties as described in Subsection [(1)(d) or (e)] (5) or (6).
109          [(4) The Department of Corrections shall cause the blood specimen of the alleged
110     offender defined in Subsection (1) confined in any state prison to be taken and shall forward
111     the specimen to the Department of Health as provided in Section 64-13-36.]
112          [(5)] (9) The alleged offender who is tested is responsible upon conviction for the costs
113     of testing and any legal proceedings necessary to obtain an order authorizing the testing, unless
114     the alleged offender is indigent. [The] If the alleged offender is indigent, the costs of testing
115     will [then] be paid by the Department of Health and Human Services from the General Fund.
116          (10) Results of a test conducted pursuant to this section are presumptively inadmissible
117     in evidence in the criminal matter in connection with which the testing was requested, unless a
118     court of competent jurisdiction determines that evidence of the test result may be admitted for
119     the limited purpose of impeaching a witness.