CS FOR HOUSE BILL NO. 109(JUD) An Act relating to blood tests for persons charged with sex offenses; and providing for an effective date. Co-chair Pearce directed that CSHB 109 (Jud) be brought on for discussion. JACK PHELPS, aide to Representative Kott, came before committee. He termed the proposed legislation a "victim's right bill" and expressed his belief that victims of sexual assault should have the right to seek some measure of relief through determination of whether or not the attacker is infected with sexually transmitted diseases. Through petition by the victim, courts may order that the attacker provide blood samples for testing. Mr. Phelps noted a connection between the proposed bill and federal moneys provided through the federal Crime Control Act of 1990. The Dept. of Public Safety could lose 10%-- $187.0 of its crime control grant moneys if the legislation is not passed by October of 1993. Funding from states that do not comply will be redistributed to those that do. Co-chair Pearce voiced her understanding that the attacker has to be changed with the assault before the proposed bill would come into play. Mr Phelps concurred. He explained that the petition initiated by the victim would be a separate court action. The court would have to make a finding that the alleged perpetrator committed a crime and that the crime included sexual penetration. Based on a finding of probable cause, the court would then order the blood test. In response to an additional question from Senator Rieger, Mr. Phelps explained that a "charge" against an individual results from presentment or indictment by a grand jury or by sworn statement by an officer of the law. Most of the crimes covered by the bill are felony charges which are generally brought by indictment. Senator Rieger next inquired concerning the reason for the seven-day waiting period, after arrest, during which the court may not order a test. Mr. Phelps explained that the intention of the waiting period is to ensure that charges have actually been filed, the defendant has obtained counsel, and it appears unlikely the charges will be dropped. Senator Rieger directed attention to page 3, lines 2 and 3, and inquired concerning "adjudication by the court other than a conviction" and asked if plea bargains would be covered by the bill. End, SFC-93, #71, Side 2 Begin, SFC-93, #73, Side 1 Mr. Phelps responded that adjudication other than conviction generally means that the individual has been acquitted. A plea bargain would involve some form of guilty plea and would not remove the defendant from coverage by the proposed bill. Senator Rieger directed attention to page 4, lines 4 and 5, and asked why results of the test would not be admissible evidence in the criminal proceeding. Mr. Phelps responded that the purpose of the test is to provide information to victims. It is not intended to be used as evidence against an individual. The proposed bill would not preclude a prosecutor from requesting a test for evidentiary purposes. In response to a further inquiry from Senator Rieger regarding language at page 4, line 3, Mr. Phelps explained that with court allowance, the victim could disclose test information to the victim's spouse, immediate family, persons occupying the same household as the victim, or a person in a dating, courtship, or engagement relationship with the victim. That language was added to the bill at the request of the Council on Domestic Violence and Sexual Assault. Senator Rieger questioned whether the language was properly worded and suggested that Representative Kott and his staff further review the provision. Senator Jacko asked if the court is required to hold a hearing if the defendant objects to the testing. Mr. Phelps responded negatively. He explained that the bill allows the court to rely upon evidence gathered by the grand jury or at preliminary hearing if that evidence is sufficient to convince the court that the defendant was the perpetrator. In the absence of that evidence, the court could hold an additional hearing, based on petition from the victim, and take testimony to make a probable cause determination. Senator Jacko asked if the defendant would be required to be present or represented at the hearing. Mr. Phelps responded negatively, indicating that indictments are often ex parte. Co-chair Pearce called for additional testimony on the bill. None was forthcoming. She then queried members on disposition. Senator Rieger MOVED that CSHB 109 (Jud) pass from committee with individual recommendations and the accompanying fiscal notes. No objection having been raised, CSHB 109 (Jud) was REPORTED OUT of committee with zero fiscal notes from the Dept. of Law and Dept. of Corrections, a $45.5 note from the Dept. of Health and Social Services (Nursing), and a $27.9 note from the Dept. of Health and Social Services (Laboratories). Co-chairs Pearce and Frank and Senators Rieger and Sharp signed the committee report with a "do pass" recommendation. Senators Jacko and Kerttula signed "no rec." Senator Kelly was temporarily absent from the meeting and did not sign.