0001| SENATE BILL 91
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0002| 42ND LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION,
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0003| 1996
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0004| INTRODUCED BY
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0005| TIMOTHY Z. JENNINGS
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0006|
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0007|
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0008|
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0009|
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0010|
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0011| AN ACT
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0012| RELATING TO HEALTH; REQUIRING A PERSON FORMALLY CHARGED FOR
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0013| ALLEGEDLY COMMITTING CRIMINAL SEXUAL PENETRATION TO UNDERGO A
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0014| TEST TO IDENTIFY THE HUMAN IMMUNODEFICIENCY VIRUS; AMENDING AND
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0015| ENACTING SECTIONS OF THE HUMAN IMMUNODEFICIENCY VIRUS TEST ACT.
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0016|
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0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018| Section 1. Section 24-2B-2 NMSA 1978 (being Laws 1989,
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0019| Chapter 227, Section 2, as amended) is amended to read:
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0020| "24-2B-2. INFORMED CONSENT.--No person shall perform a
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0021| test designed to identify the human immunodeficiency virus or
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0022| its antigen or antibody without first obtaining the informed
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0023| consent of the person upon whom the test is performed, except as
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0024| provided in Section 24-2B-5, [or] 24-2B-5.1 or 24-2B-5.2
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0025| NMSA 1978. Informed consent shall be preceded by an explanation
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0001| of the test, including its purpose, potential uses and
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0002| limitations and the meaning of its results. Consent need not be
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0003| in writing provided there is documentation in the medical record
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0004| that the test has been explained and the consent has been
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0005| obtained."
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0006| Section 2. A new section of the Human Immunodeficiency
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0007| Virus Test Act, Section 24-2B-5.2 NMSA 1978, is enacted to read:
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0008| "24-2B-5.2. [NEW MATERIAL] INFORMED CONSENT NOT
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0009| REQUIRED--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
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0010| COMMITTING CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO
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0011| ADMINISTER AND PAY FOR TEST.--
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0012| A. A test designed to identify the human
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0013| immunodeficiency virus or its antigen or antibody may be
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0014| performed, without his consent, on a person who is formally
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0015| charged for allegedly committing any state criminal offense:
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0016| (1) involving contact between the penis and the
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0017| vulva;
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0018| (2) involving contact between the penis and
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0019| anus;
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0020| (3) involving contact between the mouth and
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0021| penis;
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0022| (4) involving contact between the mouth and
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0023| vulva; or
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0024| (5) involving contact between the mouth and
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0025| anus.
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0001| B. When consent to perform a test on an alleged
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0002| offender cannot be obtained pursuant to the provisions of
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0003| Section 24-2B-2 or 24-2B-3 NMSA 1978, the alleged victim of a
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0004| criminal offense described in Subsection A of this section may
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0005| petition the court to order that a test be performed on the
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0006| alleged offender. The petition and all proceedings in
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0007| connection therewith shall be under seal. When the alleged
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0008| victim of the criminal offense is a minor or incompetent, the
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0009| parent or legal guardian of the alleged victim may petition the
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0010| court to order that a test be performed on the alleged offender.
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0011| The court shall order and the test shall be administered to the
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0012| alleged offender within ten days after the petition is filed by
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0013| the victim, his parent or guardian. The results of the test
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0014| shall be disclosed only to the alleged offender and to the
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0015| alleged victim or the alleged victim's parent or legal guardian.
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0016| When the alleged offender has a positive test result, both the
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0017| alleged offender and the alleged victim shall be provided with
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0018| counseling, as described in Section 24-2B-4 NMSA 1978.
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0019| C. The court's order shall direct the department of
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0020| health to be responsible for the administration of and payment
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0021| for the test and the lawful distribution of the test results.
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0022| D. A prosecuting attorney may not introduce into
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0023| evidence in a criminal proceeding arising out of the alleged
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0024| offense the fact that a test was administered to the alleged
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0025| offender pursuant to the provisions of this section.
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0001| E. The administration of a test to an alleged
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0002| offender pursuant to the provisions of this section shall not
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0003| preclude the subsequent administration of another test pursuant
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0004| to the provisions of Section 24-2B-5.1 NMSA 1978."
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0005| Section 3. EFFECTIVE DATE.--The effective date of the
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0006| provisions of this act is July 1, 1996.
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0007|
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0008|
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0009| FORTY-SECOND LEGISLATURE
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0010| SECOND SESSION, 1996
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0011|
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0012|
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0013| JANUARY 22, 1996
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0014|
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0015| Mr. President:
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0016|
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0017| Your COMMITTEES' COMMITTEE, to whom has been referred
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0018|
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0019| SENATE BILL 91
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0020|
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0021| has had it under consideration and finds same to be GERMANE, PURSUANT
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0022| TO EXECUTIVE MESSAGE NUMBER FOUR, and thence referred to the
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0023| JUDICIARY COMMITTEE.
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0024|
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0025| Respectfully submitted,
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0001|
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0002|
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0003|
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0004|
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0005| __________________________________
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0006| SENATOR MANNY M. ARAGON, Chairman
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0007|
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0008|
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0009|
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0010| Adopted_______________________ Not Adopted_______________________
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0011| (Chief Clerk) (Chief Clerk)
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0012|
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0013|
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0014| Date ________________________
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0015|
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0016|
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0017| S0091CC1
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0018|
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0019|
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0020| FORTY-SECOND LEGISLATURE
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0021| SECOND SESSION, 1996
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0022|
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0023|
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0024| February 2, 1996
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0025|
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0001| Mr. President:
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0002|
|
0003| Your JUDICIARY COMMITTEE, to whom has been referred
|
0004|
|
0005| SENATE BILL 91
|
0006|
|
0007| has had it under consideration and reports same with recommendation that
|
0008| it DO NOT PASS, but that
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0009|
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0010| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
|
0011| SENATE BILL 91
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0012|
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0013| DO PASS.
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0014| Respectfully submitted,
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0015|
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0016|
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0017|
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0018| __________________________________
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0019| Janice D. Paster, Chairman
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0020|
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0021|
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0022| Adopted_______________________ Not Adopted_______________________
|
0023| (Chief Clerk) (Chief Clerk)
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0024|
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0025|
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0001| Date ________________________
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0002|
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0003|
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0004| The roll call vote was 5 For 0 Against
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0005| Yes: 5
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0006| No: 0
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0007| Excused: Carraro, Cisneros, Sanchez, Vernon
|
0008| Absent: None
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0009|
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0010|
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0011| S0091JU1
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0012| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
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0013| SENATE BILL 91
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0014| 42nd legislature - STATE OF NEW MEXICO - second session, 1996
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0015|
|
0016|
|
0017|
|
0018|
|
0019|
|
0020|
|
0021|
|
0022| AN ACT
|
0023| RELATING TO HEALTH; REQUIRING A PERSON FORMALLY CHARGED FOR
|
0024| ALLEGEDLY COMMITTING CERTAIN CRIMINAL OFFENSES TO UNDERGO TESTS
|
0025| TO IDENTIFY SEXUALLY TRANSMITTED DISEASES AND THE HUMAN
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0001| IMMUNODEFICIENCY VIRUS; PRESCRIBING PENALTIES FOR UNAUTHORIZED
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0002| DISCLOSURE OF TEST RESULTS; AMENDING AND ENACTING SECTIONS OF
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0003| THE NMSA 1978.
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0004|
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0005| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0006| Section 1. A new Section 24-1-9.2 NMSA 1978 is enacted to
|
0007| read:
|
0008| "24-1-9.2. [NEW MATERIAL] SEXUALLY TRANSMITTED
|
0009| DISEASES--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
|
0010| COMMITTING CERTAIN CRIMINAL OFFENSES.--
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0011| A. A test designed to identify any sexually
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0012| transmitted disease may be performed on a person, upon the
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0013| filing of a complaint, information or an indictment alleging
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0014| that the person committed a state criminal offense:
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0015| (1) involving contact between the penis and the
|
0016| vulva;
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0017| (2) involving contact between the penis and anus;
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0018| (3) involving contact between the mouth and
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0019| penis;
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0020| (4) involving contact between the mouth and
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0021| vulva; or
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0022| (5) involving contact between the mouth and anus.
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0023| B. If consent to perform a test on an alleged offender
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0024| cannot be obtained, the victim of the alleged criminal offense
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0025| described in Subsection A of this section may petition the
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0001| court, through the prosecuting office or personally, to order
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0002| that a test be performed on the alleged offender; provided that
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0003| the same test is first performed on the victim of the alleged
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0004| criminal offense. The test may be performed on the alleged
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0005| offender regardless of the result of the test performed on the
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0006| victim of the alleged criminal offense. If the victim of the
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0007| alleged criminal offense is a minor or incompetent, the parent
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0008| or legal guardian of the victim of the alleged criminal offense
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0009| may petition the court to order that a test be performed on the
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0010| alleged offender.
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0011| C. The court may issue an order based on a finding of
|
0012| good cause after a hearing at which both the victim of the
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0013| alleged criminal offense and the alleged offender have the right to
|
0014| be present. During the hearing, only affidavits, counter
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0015| affidavits and medical reports regarding the facts that support or
|
0016| rebut the issuance of an order shall be admissible. The hearing
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0017| shall be conducted within seventy-two hours after the victim
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0018| petitions the court for the order. The petition and all
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0019| proceedings in connection therewith shall be under seal. The court
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0020| shall issue an order and the test shall be administered to the
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0021| alleged offender within ten days after the petition is filed by the
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0022| victim of the alleged criminal offense, his parent or guardian.
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0023| D. The results of the test shall be disclosed only to the
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0024| alleged offender and to the victim of the alleged criminal offense
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0025| or the victim's parent or legal guardian. When the victim of the
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0001| alleged criminal offense or the alleged offender has a positive
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0002| test result, both the alleged offender and the victim of the
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0003| alleged criminal offense shall be provided with counseling.
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0004| E. A prosecuting attorney may not use in a criminal
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0005| proceeding arising out of the alleged criminal offense the fact
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0006| that a test was administered to the alleged offender or the results
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0007| of the test.
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0008| F. The provisions of this section shall not affect the
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0009| rights and remedies available to the victim of the alleged criminal
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0010| offense and the alleged offender in any civil action.
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0011| G. The administration of a test to an alleged offender
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0012| pursuant to the provisions of this section shall not preclude the
|
0013| subsequent administration of another test pursuant to the
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0014| provisions of Section 24-1-9.1 NMSA 1978."
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0015| Section 2. A new Section 24-1-9.3 NMSA 1978 is enacted to
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0016| read:
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0017| "24-1-9.3. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--MANDATORY COUNSELING.--No positive test result for a sexually
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0018| transmitted disease shall be revealed to the person upon whom the
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0019| test was performed without the person performing the test or the
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0020| health facility at which the test was performed providing or
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0021| referring that person for individual counseling about:
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0022| A. the meaning of the test results;
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0023| B. the possible need for additional testing;
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0024| C. the availability of appropriate health care services,
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0025| including mental health care, social and support services; and
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0001| D. the benefits of locating and counseling any individual
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0002| by whom the infected person may have been exposed to
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0003| the sexually transmitted disease and any individual whom the
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0004| infected person may have exposed to the sexually transmitted
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0005| disease."
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0006| Section 3. A new Section 24-1-9.4 NMSA 1978 is enacted to
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0007| read:
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0008| "24-1-9.4. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--
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0009| CONFIDENTIALITY.--Except as provided in Section 24-1-9.2 NMSA 1978,
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0010| no person or the person's agents or employees who require or
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0011| administer a test for sexually transmitted diseases shall disclose
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0012| the identity of any person upon whom a test is performed or the
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0013| result of such a test in a manner that permits identification of
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0014| the subject of the test, except to the following persons:
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0015| A. the subject of the test or the subject's legally
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0016| authorized representative, guardian or legal custodian;
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0017| B. any person designated in a legally effective release
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0018| of the test results executed prior to or after the test by the
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0019| subject of the test or the subject's legally authorized
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0020| representative;
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0021| C. an authorized agent, a credentialed or privileged phy-
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0022| sician or employee of a health facility or health care provider if
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0023| the health care facility or health care provider itself is autho-
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0024| rized to obtain the test results, the agent or employee provides
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0025| patient care or handles or processes specimens of body fluids or
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0001| tissues and the agent or employee has a need to know such informa-
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0002| tion;
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0003| D. the department of health and the centers for disease
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0004| control and prevention of the United States public health service
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0005| in accordance with reporting requirements for a diagnosed case of a
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0006| sexually transmitted disease;
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0007| E. a health facility or health care provider that
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0008| procures, processes, distributes or uses:
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0009| (1) a human body part from a deceased person, with
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0010| respect to medical information regarding that person;
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0011| (2) semen for the purpose of artificial
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0012| insemination;
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0013| (3) blood or blood products for transfusion or
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0014| injection; or
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0015| (4) human body parts for transplant with respect to
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0016| medical information regarding the donor or recipient;
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0017| F. health facility staff committees or accreditation or
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0018| oversight review organizations that are conducting program
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0019| monitoring, program evaluation or service reviews, as long as any
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0020| identity remains confidential;
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0021| G. authorized medical or epidemiological researchers who
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0022| may not further disclose any identifying characteristics or
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0023| information; and
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0024| H. for purposes of application or reapplication for
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0025| insurance coverage, an insurer or reinsurer upon whose request the
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0001| test was performed."
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0002| Section 4. A new Section 24-1-9.5 NMSA 1978 is enacted to
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0003| read:
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0004| "24-1-9.5. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--
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0005| DISCLOSURE STATEMENT.--No person to whom the results of a test for
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0006| sexually transmitted diseases have been disclosed may disclose the
|
0007| test results to another person, except as authorized in Sections
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0008| 24-1-9.4 and 24-1-9.6 NMSA 1978. Whenever disclosure is made, it
|
0009| shall be accompanied by a statement in writing that includes the
|
0010| following or substantially similar language:
|
0011| "This information has been disclosed to you from records whose
|
0012| confidentiality is protected by state law. State law prohibits you
|
0013| from making any further disclosure of such information without the
|
0014| specific written consent of the person to whom such information
|
0015| pertains, or as otherwise permitted by state law. A person who
|
0016| makes an unauthorized disclosure of this information is guilty of a
|
0017| petty misdemeanor and shall be sentenced to imprisonment in the
|
0018| county jail for a definite term not to exceed six months or the
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0019| payment of a fine of not more than five hundred dollars ($500), or
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0020| both."."
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0021| Section 5. A new Section 24-1-9.6 NMSA 1978 is enacted to
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0022| read:
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0023| "24-1-9.6. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--DISCLOSURE.--A victim of an alleged criminal offense who receives
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0024| information pursuant to Section 24-1-9.2 NMSA 1978 may disclose the
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0025| test results as is reasonably necessary to protect his health and
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0001| safety or the health and safety of his family or sexual partner."
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0002| Section 6. A new Section 24-1-9.7 NMSA 1978 is enacted to
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0003| read:
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0004| "24-1-9.7. [NEW MATERIAL] PENALTY.--A person who makes an
|
0005| unauthorized disclosure of the results of a test designed to
|
0006| identify a sexually transmitted disease is guilty of a petty
|
0007| misdemeanor and shall be sentenced to imprisonment in the county
|
0008| jail for a definite term not to exceed six months or the payment of
|
0009| a fine of not more than five hundred dollars ($500), or both."
|
0010| Section 7. Section 24-2B-2 NMSA 1978 (being Laws 1989,
|
0011| Chapter 227, Section 2, as amended) is amended to read:
|
0012| "24-2B-2. INFORMED CONSENT.--No person shall perform a test
|
0013| designed to identify the human immunodeficiency virus or its
|
0014| antigen or antibody without first obtaining the informed consent of
|
0015| the person upon whom the test is performed, except as provided in
|
0016| Section 24-2B-5, [or] 24-2B-5.1 or 24-2B-5.2 NMSA 1978.
|
0017| Informed consent shall be preceded by an explanation of the test,
|
0018| including its purpose, potential uses and limitations and the
|
0019| meaning of its results. Consent need not be in writing provided
|
0020| there is documentation in the medical record that the test has been
|
0021| explained and the consent has been obtained."
|
0022| Section 8. A new section of the Human Immunodeficiency Virus
|
0023| Test Act, Section 24-2B-5.2 NMSA 1978, is enacted to read:
|
0024| "24-2B-5.2. [NEW MATERIAL] INFORMED CONSENT NOT
|
0025| REQUIRED--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
|
0001| COMMITTING CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO ADMINISTER
|
0002| AND PAY FOR TEST.--
|
0003| A. A test designed to identify the human immunodeficiency
|
0004| virus or its antigen or antibody may be performed, without his
|
0005| consent, on a person upon the filing of a complaint, information or
|
0006| an indictment alleging that the person committed a state criminal
|
0007| offense:
|
0008| (1) involving contact between the penis and the
|
0009| vulva;
|
0010| (2) involving contact between the penis and anus;
|
0011| (3) involving contact between the mouth and penis;
|
0012| (4) involving contact between the mouth and vulva;
|
0013| or
|
0014| (5) involving contact between the mouth and anus.
|
0015| B. If consent to perform a test on an alleged offender
|
0016| cannot be obtained pursuant to the provisions of Section 24-2B-2 or
|
0017| 24-2B-3 NMSA 1978, the victim of the alleged criminal offense
|
0018| described in Subsection A of this section may petition the court,
|
0019| through the prosecuting office or personally, to order that a test
|
0020| be performed on the alleged offender; provided that the same test
|
0021| is first performed on the victim of the alleged criminal offense.
|
0022| The test may be performed on the alleged offender regardless of the
|
0023| result of the test performed on the victim of the alleged offense.
|
0024| If the victim of the alleged criminal offense is a minor or
|
0025| incompetent, the parent or legal guardian of the victim of the
|
0001| alleged criminal offense may petition the court to order that a
|
0002| test be performed on the alleged offender.
|
0003| C. The court may issue an order based on a finding of
|
0004| good cause after a hearing at which both the victim of the alleged
|
0005| criminal offense and the alleged offender have the right to be
|
0006| present. During the hearing, only affidavits, counter affidavits
|
0007| and medical reports regarding the facts that support or rebut the
|
0008| issuance of an order shall be admissible. The hearing shall be
|
0009| conducted within seventy-two hours after the victim of the alleged
|
0010| criminal offense petitions the court for the order. The petition
|
0011| and all proceedings in connection therewith shall be under seal.
|
0012| The court shall issue the order and the test shall be administered
|
0013| to the alleged offender within ten days after the petition is filed
|
0014| by the victim of the alleged offense, his parent or guardian.
|
0015| D. The results of the test shall be disclosed only to the
|
0016| alleged offender and to the victim of the alleged criminal offense
|
0017| or the victim's parent or legal guardian. When the victim of the
|
0018| alleged criminal offense or the alleged offender has a positive
|
0019| test result, both the alleged offender and the victim of the
|
0020| alleged criminal offense shall be provided with counseling, as
|
0021| described in Section 24-2B-4 NMSA 1978.
|
0022| E. The court's order shall direct the department of
|
0023| health to be responsible for the administration of and payment for
|
0024| the test and the lawful distribution of the test results.
|
0025| F. A prosecuting attorney may not use in a criminal
|
0001| proceeding arising out of the alleged criminal offense the fact
|
0002| that a test was administered to the alleged offender, or the
|
0003| results of the test.
|
0004| G. The provisions of this section shall not affect the
|
0005| rights and remedies available to the victim of the alleged criminal
|
0006| offense and alleged offender in any civil action.
|
0007| H. The administration of a test to an alleged offender
|
0008| pursuant to the provisions of this section shall not preclude the
|
0009| subsequent administration of another test pursuant to the
|
0010| provisions of Section 24-2B-5.1 NMSA 1978."
|
0011| Section 9. Section 24-2B-7 NMSA 1978 (being Laws 1989,
|
0012| Chapter 227, Section 7) is amended to read:
|
0013| "24-2B-7. DISCLOSURE STATEMENT.--No person to whom the
|
0014| results of a test have been disclosed may disclose the test results
|
0015| to another person except as authorized by the Human
|
0016| Immunodeficiency Virus Test Act. Whenever disclosure is made
|
0017| pursuant to that act, it shall be accompanied by a statement in
|
0018| writing [which] that includes the following or substantially
|
0019| similar language: "This information has been disclosed to you from
|
0020| records whose confidentiality is protected by state law. State law
|
0021| prohibits you from making any further disclosure of such
|
0022| information without the specific written consent of the person to
|
0023| whom such information pertains, or as otherwise permitted by state
|
0024| law. A person who makes an unauthorized disclosure of this
|
0025| information is guilty of a petty misdemeanor and shall be sentenced
|
0001| to imprisonment in the county jail for a definite term not to
|
0002| exceed six months or the payment of a fine of not more than five
|
0003| hundred dollars ($500), or both."
|
0004| Section 10. Section 24-2B-8 NMSA 1978 (being Laws 1989, Chap-
|
0005| ter 227, Section 8) is amended to read:
|
0006| "24-2B-8. [SELF] DISCLOSURE.--Nothing in the Human
|
0007| Immunodeficiency Virus Test Act shall be construed to prevent a
|
0008| person who has been tested from disclosing in any way to any other
|
0009| person his own test results. Any victim of an alleged criminal
|
0010| offense who receives information pursuant to Section 24-2B-5.2 NMSA
|
0011| 1978 may disclose the test results as is reasonably necessary to
|
0012| protect his health and safety or the health and safety of his
|
0013| family or sexual partner."
|
0014| Section 11. A new section of the Human Immunodeficiency Virus
|
0015| Test Act, Section 24-2B-9 NMSA 1978, is enacted to read:
|
0016| "24-2B-9. [NEW MATERIAL] PENALTY.--A person who makes an
|
0017| unauthorized disclosure of the results of a test designed to
|
0018| identify the human immunodeficiency virus or its antigen or
|
0019| antibody is guilty of a petty misdemeanor and shall be sentenced to
|
0020| imprisonment in the county jail for a definite term not to exceed
|
0021| six months or the payment of a fine of not more than five hundred
|
0022| dollars ($500), or both."
|
0023| Section 12. EFFECTIVE DATE.--The effective date of the
|
0024| provisions of this act is July 1, 1996.
|
0025|
|
0001|
|
0002| FORTY-SECOND LEGISLATURE
|
0003| SECOND SESSION, 1996
|
0004|
|
0005|
|
0006| February 2, 1996
|
0007|
|
0008| Mr. President:
|
0009|
|
0010| Your JUDICIARY COMMITTEE, to whom has been referred
|
0011|
|
0012| SENATE BILL 91
|
0013|
|
0014| has had it under consideration and reports same with recommendation
|
0015| that it DO NOT PASS, but that
|
0016|
|
0017| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
|
0018| SENATE BILL 91
|
0019|
|
0020| DO PASS.
|
0021| Respectfully submitted,
|
0022|
|
0023|
|
0024|
|
0025| __________________________________
|
0001| Janice D. Paster, Chairman
|
0002|
|
0003|
|
0004| Adopted_______________________ Not Adopted_______________________
|
0005| (Chief Clerk) (Chief Clerk)
|
0006|
|
0007|
|
0008| Date ________________________
|
0009|
|
0010|
|
0011| The roll call vote was 5 For 0 Against
|
0012| Yes: 5
|
0013| No: 0
|
0014| Excused: Carraro, Cisneros, Sanchez, Vernon
|
0015| Absent: None
|
0016|
|
0017|
|
0018| S0091JU1
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0019| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
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0020| SENATE BILL 91
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0021| 42nd legislature - STATE OF NEW MEXICO - second session, 1996
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0022|
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0023|
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0024|
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0025|
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0001|
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0002|
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0003|
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0004| AN ACT
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0005| RELATING TO HEALTH; REQUIRING A PERSON FORMALLY CHARGED FOR
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0006| ALLEGEDLY COMMITTING CERTAIN CRIMINAL OFFENSES TO UNDERGO TESTS
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0007| TO IDENTIFY SEXUALLY TRANSMITTED DISEASES AND THE HUMAN
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0008| IMMUNODEFICIENCY VIRUS; PRESCRIBING PENALTIES FOR UNAUTHORIZED
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0009| DISCLOSURE OF TEST RESULTS; AMENDING AND ENACTING SECTIONS OF
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0010| THE NMSA 1978.
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0011|
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0012| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0013| Section 1. A new Section 24-1-9.2 NMSA 1978 is enacted to
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0014| read:
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0015| "24-1-9.2. [NEW MATERIAL] SEXUALLY TRANSMITTED
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0016| DISEASES--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
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0017| COMMITTING CERTAIN CRIMINAL OFFENSES.--
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0018| A. A test designed to identify any sexually
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0019| transmitted disease may be performed on a person, upon the
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0020| filing of a complaint, information or an indictment alleging
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0021| that the person committed a state criminal offense:
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0022| (1) involving contact between the penis and the
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0023| vulva;
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0024| (2) involving contact between the penis and anus;
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0025| (3) involving contact between the mouth and
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0001| penis;
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0002| (4) involving contact between the mouth and
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0003| vulva; or
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0004| (5) involving contact between the mouth and anus.
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0005| B. If consent to perform a test on an alleged offender
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0006| cannot be obtained, the victim of the alleged criminal offense
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0007| described in Subsection A of this section may petition the
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0008| court, through the prosecuting office or personally, to order
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0009| that a test be performed on the alleged offender; provided that
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0010| the same test is first performed on the victim of the alleged
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0011| criminal offense. The test may be performed on the alleged
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0012| offender regardless of the result of the test performed on the
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0013| victim of the alleged criminal offense. If the victim of the
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0014| alleged criminal offense is a minor or incompetent, the parent
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0015| or legal guardian of the victim of the alleged criminal offense
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0016| may petition the court to order that a test be performed on the
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0017| alleged offender.
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0018| C. The court may issue an order based on a finding of
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0019| good cause after a hearing at which both the victim of the
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0020| alleged criminal offense and the alleged offender have the right to
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0021| be present. During the hearing, only affidavits, counter
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0022| affidavits and medical reports regarding the facts that support or
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0023| rebut the issuance of an order shall be admissible. The hearing
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0024| shall be conducted within seventy-two hours after the victim
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0025| petitions the court for the order. The petition and all
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0001| proceedings in connection therewith shall be under seal. The court
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0002| shall issue an order and the test shall be administered to the
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0003| alleged offender within ten days after the petition is filed by the
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0004| victim of the alleged criminal offense, his parent or guardian.
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0005| D. The results of the test shall be disclosed only to the
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0006| alleged offender and to the victim of the alleged criminal offense
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0007| or the victim's parent or legal guardian. When the victim of the
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0008| alleged criminal offense or the alleged offender has a positive
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0009| test result, both the alleged offender and the victim of the
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0010| alleged criminal offense shall be provided with counseling.
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0011| E. A prosecuting attorney may not use in a criminal
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0012| proceeding arising out of the alleged criminal offense the fact
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0013| that a test was administered to the alleged offender or the results
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0014| of the test.
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0015| F. The provisions of this section shall not affect the
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0016| rights and remedies available to the victim of the alleged criminal
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0017| offense and the alleged offender in any civil action.
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0018| G. The administration of a test to an alleged offender
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0019| pursuant to the provisions of this section shall not preclude the
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0020| subsequent administration of another test pursuant to the
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0021| provisions of Section 24-1-9.1 NMSA 1978."
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0022| Section 2. A new Section 24-1-9.3 NMSA 1978 is enacted to
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0023| read:
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0024| "24-1-9.3. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--MANDATORY COUNSELING.--No positive test result for a sexually
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0025| transmitted disease shall be revealed to the person upon whom the
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0001| test was performed without the person performing the test or the
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0002| health facility at which the test was performed providing or
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0003| referring that person for individual counseling about:
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0004| A. the meaning of the test results;
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0005| B. the possible need for additional testing;
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0006| C. the availability of appropriate health care services,
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0007| including mental health care, social and support services; and
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0008| D. the benefits of locating and counseling any individual
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0009| by whom the infected person may have been exposed to
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0010| the sexually transmitted disease and any individual whom the
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0011| infected person may have exposed to the sexually transmitted
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0012| disease."
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0013| Section 3. A new Section 24-1-9.4 NMSA 1978 is enacted to
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0014| read:
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0015| "24-1-9.4. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--
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0016| CONFIDENTIALITY.--Except as provided in Section 24-1-9.2 NMSA 1978,
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0017| no person or the person's agents or employees who require or
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0018| administer a test for sexually transmitted diseases shall disclose
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0019| the identity of any person upon whom a test is performed or the
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0020| result of such a test in a manner that permits identification of
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0021| the subject of the test, except to the following persons:
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0022| A. the subject of the test or the subject's legally
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0023| authorized representative, guardian or legal custodian;
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0024| B. any person designated in a legally effective release
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0025| of the test results executed prior to or after the test by the
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0001| subject of the test or the subject's legally authorized
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0002| representative;
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0003| C. an authorized agent, a credentialed or privileged phy-
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0004| sician or employee of a health facility or health care provider if
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0005| the health care facility or health care provider itself is autho-
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0006| rized to obtain the test results, the agent or employee provides
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0007| patient care or handles or processes specimens of body fluids or
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0008| tissues and the agent or employee has a need to know such informa-
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0009| tion;
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0010| D. the department of health and the centers for disease
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0011| control and prevention of the United States public health service
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0012| in accordance with reporting requirements for a diagnosed case of a
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0013| sexually transmitted disease;
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0014| E. a health facility or health care provider that
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0015| procures, processes, distributes or uses:
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0016| (1) a human body part from a deceased person, with
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0017| respect to medical information regarding that person;
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0018| (2) semen for the purpose of artificial
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0019| insemination;
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0020| (3) blood or blood products for transfusion or
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0021| injection; or
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0022| (4) human body parts for transplant with respect to
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0023| medical information regarding the donor or recipient;
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0024| F. health facility staff committees or accreditation or
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0025| oversight review organizations that are conducting program
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0001| monitoring, program evaluation or service reviews, as long as any
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0002| identity remains confidential;
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0003| G. authorized medical or epidemiological researchers who
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0004| may not further disclose any identifying characteristics or
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0005| information; and
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0006| H. for purposes of application or reapplication for
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0007| insurance coverage, an insurer or reinsurer upon whose request the
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0008| test was performed."
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0009| Section 4. A new Section 24-1-9.5 NMSA 1978 is enacted to
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0010| read:
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0011| "24-1-9.5. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--
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0012| DISCLOSURE STATEMENT.--No person to whom the results of a test for
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0013| sexually transmitted diseases have been disclosed may disclose the
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0014| test results to another person, except as authorized in Sections
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0015| 24-1-9.4 and 24-1-9.6 NMSA 1978. Whenever disclosure is made, it
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0016| shall be accompanied by a statement in writing that includes the
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0017| following or substantially similar language:
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0018| "This information has been disclosed to you from records whose
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0019| confidentiality is protected by state law. State law prohibits you
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0020| from making any further disclosure of such information without the
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0021| specific written consent of the person to whom such information
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0022| pertains, or as otherwise permitted by state law. A person who
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0023| makes an unauthorized disclosure of this information is guilty of a
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0024| petty misdemeanor and shall be sentenced to imprisonment in the
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0025| county jail for a definite term not to exceed six months or the
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0001| payment of a fine of not more than five hundred dollars ($500), or
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0002| both."."
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0003| Section 5. A new Section 24-1-9.6 NMSA 1978 is enacted to
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0004| read:
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0005| "24-1-9.6. [NEW MATERIAL] SEXUALLY TRANSMITTED DISEASES--DISCLOSURE.--A victim of an alleged criminal offense who receives
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0006| information pursuant to Section 24-1-9.2 NMSA 1978 may disclose the
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0007| test results as is reasonably necessary to protect his health and
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0008| safety or the health and safety of his family or sexual partner."
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0009| Section 6. A new Section 24-1-9.7 NMSA 1978 is enacted to
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0010| read:
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0011| "24-1-9.7. [NEW MATERIAL] PENALTY.--A person who makes an
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0012| unauthorized disclosure of the results of a test designed to
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0013| identify a sexually transmitted disease is guilty of a petty
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0014| misdemeanor and shall be sentenced to imprisonment in the county
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0015| jail for a definite term not to exceed six months or the payment of
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0016| a fine of not more than five hundred dollars ($500), or both."
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0017| Section 7. Section 24-2B-2 NMSA 1978 (being Laws 1989,
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0018| Chapter 227, Section 2, as amended) is amended to read:
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0019| "24-2B-2. INFORMED CONSENT.--No person shall perform a test
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0020| designed to identify the human immunodeficiency virus or its
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0021| antigen or antibody without first obtaining the informed consent of
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0022| the person upon whom the test is performed, except as provided in
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0023| Section 24-2B-5, [or] 24-2B-5.1 or 24-2B-5.2 NMSA 1978.
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0024| Informed consent shall be preceded by an explanation of the test,
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0025| including its purpose, potential uses and limitations and the
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0001| meaning of its results. Consent need not be in writing provided
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0002| there is documentation in the medical record that the test has been
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0003| explained and the consent has been obtained."
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0004| Section 8. A new section of the Human Immunodeficiency Virus
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0005| Test Act, Section 24-2B-5.2 NMSA 1978, is enacted to read:
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0006| "24-2B-5.2. [NEW MATERIAL] INFORMED CONSENT NOT
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0007| REQUIRED--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY
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0008| COMMITTING CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO ADMINISTER
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0009| AND PAY FOR TEST.--
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0010| A. A test designed to identify the human immunodeficiency
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0011| virus or its antigen or antibody may be performed, without his
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0012| consent, on a person upon the filing of a complaint, information or
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0013| an indictment alleging that the person committed a state criminal
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0014| offense:
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0015| (1) involving contact between the penis and the
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0016| vulva;
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0017| (2) involving contact between the penis and anus;
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0018| (3) involving contact between the mouth and penis;
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0019| (4) involving contact between the mouth and vulva;
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0020| or
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0021| (5) involving contact between the mouth and anus.
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0022| B. If consent to perform a test on an alleged offender
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0023| cannot be obtained pursuant to the provisions of Section 24-2B-2 or
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0024| 24-2B-3 NMSA 1978, the victim of the alleged criminal offense
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0025| described in Subsection A of this section may petition the court,
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0001| through the prosecuting office or personally, to order that a test
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0002| be performed on the alleged offender; provided that the same test
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0003| is first performed on the victim of the alleged criminal offense.
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0004| The test may be performed on the alleged offender regardless of the
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0005| result of the test performed on the victim of the alleged offense.
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0006| If the victim of the alleged criminal offense is a minor or
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0007| incompetent, the parent or legal guardian of the victim of the
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0008| alleged criminal offense may petition the court to order that a
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0009| test be performed on the alleged offender.
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0010| C. The court may issue an order based on a finding of
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0011| good cause after a hearing at which both the victim of the alleged
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0012| criminal offense and the alleged offender have the right to be
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0013| present. During the hearing, only affidavits, counter affidavits
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0014| and medical reports regarding the facts that support or rebut the
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0015| issuance of an order shall be admissible. The hearing shall be
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0016| conducted within seventy-two hours after the victim of the alleged
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0017| criminal offense petitions the court for the order. The petition
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0018| and all proceedings in connection therewith shall be under seal.
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0019| The court shall issue the order and the test shall be administered
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0020| to the alleged offender within ten days after the petition is filed
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0021| by the victim of the alleged offense, his parent or guardian.
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0022| D. The results of the test shall be disclosed only to the
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0023| alleged offender and to the victim of the alleged criminal offense
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0024| or the victim's parent or legal guardian. When the victim of the
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0025| alleged criminal offense or the alleged offender has a positive
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0001| test result, both the alleged offender and the victim of the
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0002| alleged criminal offense shall be provided with counseling, as
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0003| described in Section 24-2B-4 NMSA 1978.
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0004| E. The court's order shall direct the department of
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0005| health to be responsible for the administration of and payment for
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0006| the test and the lawful distribution of the test results.
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0007| F. A prosecuting attorney may not use in a criminal
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0008| proceeding arising out of the alleged criminal offense the fact
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0009| that a test was administered to the alleged offender, or the
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0010| results of the test.
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0011| G. The provisions of this section shall not affect the
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0012| rights and remedies available to the victim of the alleged criminal
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0013| offense and alleged offender in any civil action.
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0014| H. The administration of a test to an alleged offender
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0015| pursuant to the provisions of this section shall not preclude the
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0016| subsequent administration of another test pursuant to the
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0017| provisions of Section 24-2B-5.1 NMSA 1978."
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0018| Section 9. Section 24-2B-7 NMSA 1978 (being Laws 1989,
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0019| Chapter 227, Section 7) is amended to read:
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0020| "24-2B-7. DISCLOSURE STATEMENT.--No person to whom the
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0021| results of a test have been disclosed may disclose the test results
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0022| to another person except as authorized by the Human
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0023| Immunodeficiency Virus Test Act. Whenever disclosure is made
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0024| pursuant to that act, it shall be accompanied by a statement in
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0025| writing [which] that includes the following or substantially
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0001| similar language: "This information has been disclosed to you from
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0002| records whose confidentiality is protected by state law. State law
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0003| prohibits you from making any further disclosure of such
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0004| information without the specific written consent of the person to
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0005| whom such information pertains, or as otherwise permitted by state
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0006| law. A person who makes an unauthorized disclosure of this
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0007| information is guilty of a petty misdemeanor and shall be sentenced
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0008| to imprisonment in the county jail for a definite term not to
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0009| exceed six months or the payment of a fine of not more than five
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0010| hundred dollars ($500), or both."
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0011| Section 10. Section 24-2B-8 NMSA 1978 (being Laws 1989, Chap-
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0012| ter 227, Section 8) is amended to read:
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0013| "24-2B-8. [SELF] DISCLOSURE.--Nothing in the Human
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0014| Immunodeficiency Virus Test Act shall be construed to prevent a
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0015| person who has been tested from disclosing in any way to any other
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0016| person his own test results. Any victim of an alleged criminal
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0017| offense who receives information pursuant to Section 24-2B-5.2 NMSA
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0018| 1978 may disclose the test results as is reasonably necessary to
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0019| protect his health and safety or the health and safety of his
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0020| family or sexual partner."
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0021| Section 11. A new section of the Human Immunodeficiency Virus
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0022| Test Act, Section 24-2B-9 NMSA 1978, is enacted to read:
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0023| "24-2B-9. [NEW MATERIAL] PENALTY.--A person who makes an
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0024| unauthorized disclosure of the results of a test designed to
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0025| identify the human immunodeficiency virus or its antigen or
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0001| antibody is guilty of a petty misdemeanor and shall be sentenced to
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0002| imprisonment in the county jail for a definite term not to exceed
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0003| six months or the payment of a fine of not more than five hundred
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0004| dollars ($500), or both."
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0005| Section 12. EFFECTIVE DATE.--The effective date of the
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0006| provisions of this act is July 1, 1996.
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0007| State of New Mexico
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0008| House of Representatives
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0009|
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0010| FORTY-SECOND LEGISLATURE
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0011| SECOND SESSION, 1996
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0012|
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0013|
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0014| February 12, 1996
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0015|
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0016|
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0017| Mr. Speaker:
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0018|
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0019| Your JUDICIARY COMMITTEE, to whom has been referred
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0020|
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0021| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
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0022| SENATE BILL 91
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0023|
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0024| has had it under consideration and reports same with
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0025| recommendation that it DO PASS.
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0001|
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0002| Respectfully submitted,
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0003|
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0004|
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0005|
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0006|
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0007| Cisco McSorley, Chairman
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0008|
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0009|
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0010| Adopted Not Adopted
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0011| (Chief Clerk) (Chief Clerk)
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0012|
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0013| Date
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0014|
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0015| The roll call vote was 10 For 0 Against
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0016| Yes: 10
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0017| Excused: Alwin, Gubbels, Sanchez, R.G.
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0018| Absent: None
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0019|
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0020|
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0021|
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0022| S0091JC1
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