HOUSE BILL 112
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
John A. Heaton
AN ACT
RELATING TO HEALTH; REQUIRING A DISTRICT ATTORNEY TO PETITION FOR A HUMAN IMMUNODEFICIENCY VIRUS TEST ON A PERSON CHARGED WITH OR CONVICTED OF CERTAIN SEX OFFENSES UPON THE REQUEST OF THE VICTIM; PROVIDING THAT THE TEST BE PERFORMED WITHIN FORTY-EIGHT HOURS FROM THE DATE OF THE COURT ORDER.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 24-2B-5.1 NMSA 1978 (being Laws 1993, Chapter 107, Section 3) is amended to read:
"24-2B-5.1. INFORMED CONSENT NOT REQUIRED--TESTING OF PERSONS CONVICTED OF CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO ADMINISTER AND PAY FOR TEST.--
A. A test designed to identify the human immunodeficiency virus or its antigen or antibody may be performed, without [his] the offender's consent, on an offender convicted pursuant to state law of any criminal offense:
(1) involving contact between the penis and vulva;
(2) involving contact between the penis and anus;
(3) involving contact between the mouth and penis;
(4) involving contact between the mouth and vulva;
(5) involving contact between the mouth and anus; or
(6) when the court determines from the facts of the case that there was a transmission or likelihood of transmission of blood, semen or vaginal secretions from the offender to the victim.
B. [When] If consent to perform a test on an offender cannot be obtained pursuant to the provisions of Section 24-2B-2 or 24-2B-3 NMSA 1978, the district attorney or other prosecutorial authority shall, upon the request of the victim of a criminal offense described in Subsection A of this section, [may] petition the court to order that a test be performed on the offender [The petition and all proceedings in connection therewith shall be under seal. When] not later than forty-eight hours from the date of the court order. If the victim of the criminal offense is a minor or incompetent, the parent or legal guardian of the victim may request the district attorney or other prosecutorial authority to petition the court to order that a test be performed on the offender. [The court shall order and the test shall be administered to the offender within ten days after the petition is filed by the victim, his parent or guardian.] The petition and all proceedings in connection with the petition shall be under seal. The results of the test shall be disclosed as soon as practicable and only to the offender and to the victim or the victim's parent or legal guardian. [When] If the offender has a positive test result, both the offender and victim shall be provided with counseling, as described in Section 24-2B-4 NMSA 1978.
C. [When] If the offender is sentenced to imprisonment in a state corrections facility, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results.
D. [When] If the offender is convicted of a misdemeanor or petty misdemeanor offense or is convicted of a felony offense that is suspended or deferred, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results.
E. [When] If the offender is a minor adjudicated as a delinquent child pursuant to the provisions of the Children's Code and the court transfers legal custody of the minor to the children, youth and families department, the court's order shall direct the children, youth and families department to be responsible for the administration of and payment for the test and the lawful distribution of the test results.
F. [When] If the offender is a minor adjudicated as a delinquent child pursuant to the provisions of the Children's Code and the court does not transfer legal custody of the minor to the children, youth and families department, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results."
Section 2. Section 24-2B-5.2 NMSA 1978 (being Laws 1996, Chapter 80, Section 8) is amended to read:
"24-2B-5.2. INFORMED CONSENT NOT REQUIRED--TESTING OF PERSONS FORMALLY CHARGED FOR ALLEGEDLY COMMITTING CERTAIN CRIMINAL OFFENSES--RESPONSIBILITY TO ADMINISTER AND PAY FOR TEST.--
A. A test designed to identify the human immunodeficiency virus or its antigen or antibody may be performed, without [his] the person's consent, on a person upon the filing of a complaint, information or an indictment alleging that the person committed a state criminal offense:
(1) involving contact between the penis and [the] vulva;
(2) involving contact between the penis and anus;
(3) involving contact between the mouth and penis;
(4) involving contact between the mouth and vulva; or
(5) involving contact between the mouth and anus.
B. If consent to perform a test on an alleged offender cannot be obtained pursuant to the provisions of Section 24-2B-2 or 24-2B-3 NMSA 1978, the district attorney or other prosecutorial authority shall, upon the request of the victim of the alleged criminal offense described in Subsection A of this section, [may] petition the court [through the prosecuting office or personally] to order that a test be performed on the alleged offender not later than forty-eight hours from the date of the court order; provided that the same test is first performed on the victim of the alleged criminal offense. [The test may be performed on the alleged offender regardless of the result of the test performed on the victim of the alleged offense.] If the victim of the alleged criminal offense is a minor or incompetent, the parent or legal guardian of the victim of the alleged criminal offense may request the district attorney or other prosecutorial authority to petition the court to order that a test be performed on the alleged offender. The test may be performed on the alleged offender regardless of the result of the test performed on the victim of the alleged offense.
C. The court may issue an order based on a finding of good cause after a hearing at which both the victim of the alleged criminal offense and the alleged offender have the right to be present. During the hearing, only affidavits, counter affidavits and medical reports regarding the facts that support or rebut the issuance of an order shall be admissible. The hearing shall be conducted within seventy-two hours after the [victim of the alleged criminal offense] district attorney or other prosecutorial authority petitions the court for the order. The petition and all proceedings in connection therewith shall be under seal. [The court shall issue the order and the test shall be administered to the alleged offender within ten days after the petition is filed by the victim of the alleged offense, his parent or guardian.]
D. The results of the test shall be disclosed as soon as practicable and only to the alleged offender and to the victim of the alleged criminal offense or the victim's parent or legal guardian. When the victim of the alleged criminal offense or the alleged offender has a positive test result, both the alleged offender and the victim of the alleged criminal offense shall be provided with counseling, as described in Section 24-2B-4 NMSA 1978.
E. The court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results.
F. A prosecuting attorney may not use in a criminal proceeding arising out of the alleged criminal offense the fact that a test was administered to the alleged offender or the results of the test.
G. The provisions of this section shall not affect the rights and remedies available to the victim of the alleged criminal offense and alleged offender in any civil action.
H. The administration of a test to an alleged offender pursuant to the provisions of this section shall not preclude the subsequent administration of [another test] follow-up tests pursuant to the provisions of Section 24-2B-5.1 NMSA 1978."
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