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