CSHB 109(HES): "An Act relating to blood tests for persons charged with sex offenses; and providing for an effective date."
00CS FOR HOUSE BILL NO. 109(HES) 01 "An Act relating to blood tests for persons charged with sex offenses; and 02 providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 18.15 is amended by adding new sections to read: 05 ARTICLE 4B. BLOOD TESTS OF PERSONS CHARGED WITH SEX OFFENSES. 06 Sec. 18.15.300. ORDER FOR BLOOD TEST; DISCLOSURE OF RESULTS. 07 (a) A defendant charged in a criminal complaint, indictment, or information filed with 08 a magistrate or court with a violation of AS 11.41.410 - 11.41.440 that includes sexual 09 penetration as an element of the offense, or a minor with respect to whom a petition 10 has been filed in a juvenile court alleging a violation of AS 11.41.410 - 11.41.440 that 11 includes sexual penetration as an element of the offense, may be ordered by a court 12 having jurisdiction of the complaint, indictment, information, or juvenile petition to 13 submit to testing as provided in AS 18.15.300 - 18.15.330. 14 (b) An alleged victim listed in the complaint, indictment, information, or
01 juvenile petition, the parent or guardian, or the prosecuting attorney on the behalf of 02 an alleged victim, may petition the court for an order authorized under this section. 03 (c) Upon receipt of a petition filed under (b) of this section, the court shall 04 determine if (1) probable cause exists to believe that a crime for which a test may be 05 ordered under (a) of this section has been committed, and (2) probable cause exists to 06 believe that sexual penetration took place between the defendant or minor and the 07 alleged victim in an act for which the defendant or minor is charged under (a) of this 08 section. In making the determination, the court may rely on the evidence presented 09 at a grand jury proceeding or preliminary hearing. 10 (d) If the court finds probable cause exists to believe that (1) a crime for 11 which a test may be ordered under (a) of this section has been committed, and (2) 12 sexual penetration described in (c)(2) of this section took place, the court shall order 13 that the defendant or minor provide two specimens of blood for testing as provided in 14 AS 18.15.300 - 18.15.330. 15 (e) Copies of the blood test results shall be provided to the defendant or minor, 16 each requesting victim, the victim's designee or, if the victim is a minor or 17 incompetent, the victim's parents or legal guardian. If the defendant or minor is being 18 incarcerated or detained at the time of the blood test or thereafter, the blood test results 19 shall be provided to the officer in charge and the chief medical officer of the facility 20 in which the defendant or minor is incarcerated or detained, including an incarceration 21 or detention ordered as a result of conviction or judgment of delinquency or child in 22 need of aid for an act for which the defendant or minor is charged under (a) of this 23 section. 24 (f) A court may not order a test under this section 25 (1) before seven days after the defendant or minor's arrest; 26 (2) after the entry of a disposition favorable to a defendant; or 27 (3) if the defendant is convicted or adjudicated delinquent or in need 28 of aid, after 90 days after the issuance of the judgment and sentence or the judgment 29 in a juvenile action. 30 (g) In this section, 31 (1) "disposition favorable to defendant" means an adjudication by a
01 court other than a conviction, or if the defendant is a minor not being prosecuted as 02 an adult, that the minor is not adjudicated delinquent or a child in need of aid, for an 03 offense for which a blood test could be ordered under AS 18.15.300; 04 (2) "sexual penetration" has the meaning given in AS 11.81.900(b). 05 Sec. 18.15.310. TESTING; TEST RESULTS. (a) The withdrawal of blood 06 for a test under AS 18.15.300 - 18.15.330 shall be performed in a medically approved 07 manner. Only a physician licensed under AS 08.64, physician's assistant registered 08 under AS 08.64, registered nurse, licensed practical nurse, or certified emergency 09 medical technician may withdraw blood specimens for the purposes of AS 18.15.300 - 10 18.15.330. 11 (b) The court shall order that the blood specimens withdrawn under 12 AS 18.15.300 - 18.15.330 be transmitted to a licensed medical laboratory and that tests 13 be conducted on them for medically accepted indications of exposure to or infection 14 by the human immunodeficiency virus (HIV) and other sexually transmitted diseases 15 for which medically approved testing is readily and economically available as 16 determined by the court. 17 (c) Copies of test results that indicate exposure to or infection by HIV or other 18 sexually transmitted diseases shall also be transmitted to the department. 19 (d) The test results shall be provided to the designated recipients with the 20 following disclaimer: 21 The tests were conducted in a medically approved manner but 22 tests cannot determine exposure to or infection by HIV or other 23 sexually transmitted diseases with absolute accuracy. Persons 24 receiving this test result should continue to monitor their own 25 health and should consult a physician as appropriate. 26 (e) The court shall order all persons, other than the test subject, who receive 27 test results under AS 18.15.300 - 18.15.330 to maintain the confidentiality of personal 28 identifying data relating to the test results except for disclosures by the victim, or if 29 the victim is a minor or incompetent by the victim's parents or legal guardian, as is 30 necessary to obtain medical or psychological care or advice or to ensure the health of 31 the victim's spouse, immediate family, or persons occupying the same household as
01 the victim. 02 (f) The specimens and the results of tests ordered under AS 18.15.300 - 03 18.15.330 are not admissible evidence in a criminal or juvenile proceeding. 04 (g) A person performing testing, transmitting test results, or disclosing 05 information under AS 18.15.300 - 18.15.330 is immune from civil liability for an 06 action undertaken in accordance with the provisions of AS 18.15.300 - 18.15.330. 07 (h) If the results of a blood test conducted under AS 18.15.300 indicate 08 exposure to or infection by HIV or other sexually transmitted diseases for which 09 testing was conducted, the department shall provide (1) free counseling and free testing 10 to a victim for HIV and other sexually transmitted diseases reasonably communicable 11 through the offense; and (2) counseling to the alleged perpetrator or defendant upon 12 request of the alleged perpetrator or defendant. The department shall provide referral 13 to appropriate health care facilities and support services at the request of the victim. 14 (i) In this section, 15 (1) "AIDS" means acquired immunodeficiency syndrome or HIV 16 symptomatic disease; 17 (2) "counseling" means providing a person with information and 18 explanations relating to AIDS and HIV that are medically appropriate for that person, 19 including all or part of the following: 20 (A) accurate information regarding AIDS and HIV; 21 (B) an explanation of behaviors that reduce the risk of 22 transmitting AIDS and HIV; 23 (C) an explanation of the confidentiality of information relating 24 to AIDS diagnoses and HIV tests; 25 (D) an explanation of information regarding both social and 26 medical implications of HIV tests; 27 (E) disclosure of commonly recognized treatment or treatments 28 of AIDS and HIV; 29 (3) "HIV" means the human immunodeficiency virus. 30 Sec. 18.15.320. COST OF PERFORMING TEST; REIMBURSEMENT. (a) 31 The cost of performing a blood test under AS 18.15.300 shall be paid by the
01 department. 02 (b) If a defendant for whom a blood test has been ordered under AS 18.15.300 03 is convicted of an offense for which the defendant was charged, and for which a blood 04 test could be ordered under AS 18.15.300, the court shall order the defendant to 05 reimburse the department for the cost of the test and may order the Department of 06 Corrections to deduct the amount of the test from any pay the inmate receives under 07 AS 33.30.201. 08 Sec. 18.15.330. PENALTY FOR DISCLOSURE. A person who intentionally 09 discloses personal identifying data regarding information obtained under 10 AS 18.15.300 - 18.15.330 to any person who is not authorized to receive data under 11 AS 18.15.300 - 18.15.330, by court order, or with the written consent of the defendant, 12 or as otherwise authorized by law, may be held in contempt of court. 13 * Sec. 2. This Act takes effect immediately under AS 01.10.070(c).