23A-35B-1      Definitions.
23A-35B-2      Victim's request for testing of self.
23A-35B-3      Victim's request for testing of defendant or juvenile--Hearing--Search warrant for blood sample--Time for testing.
23A-35B-3.1      Victim request for HIV test of defendant or juvenile--Hearing--Order--Time for testing.
23A-35B-4      Testing procedure--Notification of victim as to results--Payment for testing.
23A-35B-5      Confidentiality--Test results unavailable to establish guilt or innocence.
23A-35B-6      Testing or counseling for officer upon possible exchange of bodily fluids with suspect.
23A-35B-7      Emergency medical services person's request for information or testing of source individual.
23A-35B-8      Mandatory HIV testing of persons convicted of prostitution or solicitation of prostitution.
23A-35B-9      Time for HIV testing.
23A-35B-10      Convicted person to pay cost of testing.
23A-35B-11      Confidentiality of test results.
23A-35B-12      Petition for release of test results--Hearing.
23A-35B-13      Test results not to be used in criminal prosecution--Confidentiality.

23A-35B-1. Definitions.

Terms used in this chapter mean:

(1)    "Assault," an offense described in § 22-18-1, in which the facts show a possibility of exchange of bodily fluids;

(2)    "Blood-borne pathogens," any of a family of pathogenic micro-organisms that are present in and may be transmitted by human blood, including hepatitis B and HIV;

(3)    "Crime of violence," any of the offenses described in subdivision 22-1-2(9);

(4)    "Defendant," a person as described in subdivision 23A-45-9(4);

(5)    "Emergency medical services person," a person who renders emergency care or assistance including:

(a)    A person employed or receiving compensation to provide out-of-hospital emergency medical services such as a firefighter, paramedic, emergency medical technician, licensed nurse, rescue squad person, or other person who serves as an employee or volunteer of an ambulance service or other first responder, who provides out-of-hospital emergency medical services during the performance of the person's duties;

(b)    A person employed as a law enforcement officer;

(c)    A person employed as a coroner or a funeral director;

(d)    A person employed as a forensic crime laboratory worker while working outside the laboratory and involved in a criminal investigation; or

(e)    A person who renders emergency care or assistance at the scene of an emergency or while an injured person is being transported to receive medical care and who is acting as an unpaid volunteer also known as a good samaritan;

(6)    "HIV," the human immunodeficiency virus or any other identified causative agent of acquired immune deficiency syndrome (AIDS);

(7)    "Juvenile," a minor charged in juvenile court with being a delinquent child as the result of actions that would constitute a sexual assault, an assault or a crime of violence in criminal court;

(8)    "Law enforcement officer," any person described in subdivision 23A-45-9(9) or (14);

(9)    "Sexual assault," an offense described in chapter 22-22 in which the facts show a possibility of exchange of bodily fluids;

(10)    "Source individual," any person, living or dead, whose blood, tissue, or potentially infectious body fluids may be a source of blood-borne pathogen exposure to an emergency medical services person;

(11)    "Test," "testing," any medically recognized test for determining the presence of blood-borne pathogens; and

(12)    "Victim," any person who is the direct subject of an alleged act which would constitute a crime of violence as defined by subdivision 22-1-2(9), a violation of chapter 22-22, an assault as defined by § 22-18-1, a violation of § 22-18-26, or a motor vehicle accident which involved a violation of chapter 32-23 or the parent or guardian of such a person if the person is under age eighteen. Except for § 23A-35B-3, a victim also includes any emergency medical services person who has potentially been exposed to a blood-borne pathogen while rendering aid to a source individual. If a victim is unable to make a request, a member of the victim's immediate family may make such request upon the victim's behalf.

Source: SL 1991, ch 203, § 1; SL 1992, ch 172, § 1; SL 1993, ch 184, § 1; SL 2002, ch 121, § 1; SL 2010, ch 132, § 1.

23A-35B-2. Victim's request for testing of self.

A victim may request that the Department of Health provide counseling, testing for infection by blood-borne pathogens, and referral for appropriate health care and support services to the victim through its public health services. Such referral does not include any requirement that the Department of Health bear any responsibility for provision of such health care or support services to the victim.

Source: SL 1991, ch 203, § 1A; SL 1993, ch 184, § 2.

23A-35B-3. Victim's request for testing of defendant or juvenile--Hearing--Search warrant for blood sample--Time for testing.

A victim or a law enforcement officer may request in writing to the state's attorney that the defendant or the juvenile be tested for blood-borne pathogen infection by the Department of Health and that a search warrant be obtained for the purpose of taking a blood sample from the defendant or the juvenile for testing for such infection. The written request shall state that the victim or law enforcement officer believes there was an exchange of blood, semen, or other bodily fluids from the defendant or the juvenile to the victim or law enforcement officer and shall state the factual basis for believing there was such an exchange. The court shall hold a hearing at which both the victim or law enforcement officer and the defendant or the juvenile may be present. If the court finds probable cause to believe that the defendant or the juvenile committed the offense and that there was an exchange of blood, semen, or other bodily fluids from the defendant or the juvenile to the victim or from the defendant or the juvenile to the law enforcement officer, the court may order a search warrant for the purpose of taking a blood sample from the defendant or the juvenile for testing for blood-borne pathogen infection. If the court orders a search warrant, the Department of Health shall initiate the test for blood-borne pathogen infection within forty-eight hours after the department receives the blood sample.

Source: SL 1991, ch 203, § 2; SL 1992, ch 172, § 3; SL 1993, ch 184, § 3; SL 2009, ch 126, § 1.

23A-35B-3.1. Victim request for HIV test of defendant or juvenile--Hearing--Order--Time for testing

A victim, or a victim or witness assistant, may request in writing to the state's attorney that a defendant or juvenile against whom an information, indictment, or petition is presented for a crime in which, by force or threat of force, the defendant or juvenile compelled the victim to engage in sexual activity be tested for HIV by the Department of Health, and that a search warrant be obtained for the purpose of taking a blood sample from the defendant or juvenile to test for HIV. A request under this section shall state that the victim believes there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim, and shall state the factual basis for believing the exchange occurred.

Upon motion, a court of competent jurisdiction shall hold a hearing at which both the victim and defendant or juvenile may be present. If the court finds probable cause that the defendant or juvenile committed the offense and that there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim, the court shall order a search warrant for the purpose of taking a blood sample from the defendant or juvenile to test for HIV in accordance with § 23A-35B-4. A blood sample shall be taken within forty-eight hours of the date of the request under this section or, if later, the date on which the information, indictment, or petition was:

(1)    Presented or filed, and the defendant or juvenile was taken into custody; or

(2)    Served on the defendant or juvenile.

The court shall include in the order a requirement for any follow-up test for HIV that is medically appropriate based on the results of the initial test. Payment for any test for HIV under this section shall be in accordance with § 23A-35B-4. The victim, the victim or witness assistant, and the defendant shall be notified in accordance with § 23A-35B-4 of the results of any test for HIV under this section.

Source: SL 2019, ch 117, § 1.

23A-35B-4. Testing procedure--Notification of victim as to results--Payment for testing.

A health professional licensed or certified to do so shall take the blood samples required for testing for blood-borne pathogen infection and forward them to the Department of Health for testing. The testing shall take place under a test protocol determined by the Department of Health. A licensed physician designated by the victim or the law enforcement officer to receive the results of the test shall notify the victim or the law enforcement officer of the results of the victim's or law enforcement officer's test and shall notify the victim or the law enforcement officer and the defendant or the juvenile of the results of the defendant's or the juvenile's test within forty-eight hours after receipt. The county in which the alleged crime of violence, assault, sexual assault, or equivalent juvenile offense occurred shall pay for the services of the licensed or certified health professionals involved in the counseling and the testing, and a defendant, if convicted, shall reimburse the county for the costs of the testing. If the defendant is an inmate under the jurisdiction of the Department of Corrections, the costs of the testing shall be taken from the inmate's account pursuant to § 24-2-29.

Source: SL 1991, ch 203, § 3; SL 1992, ch 172, § 4; SL 1993, ch 184, § 4; SL 2002, ch 121, § 2.

23A-35B-5. Confidentiality--Test results unavailable to establish guilt or innocence.

All persons involved in carrying out the provisions of this chapter shall act in a manner that will protect the confidentiality of the victim, the source individual, and the defendant or juvenile, including sealing relevant court records. The results of the test for infection by blood-borne pathogens may not be used to establish a defendant's guilt or innocence of the charge and may not be used to determine a juvenile's status as a delinquent child.

Source: SL 1991, ch 203, § 4; SL 1993, ch 184, § 5; SL 2010, ch 132, § 3.

23A-35B-6. Testing or counseling for officer upon possible exchange of bodily fluids with suspect.

Any law enforcement officer who has reason to believe that in a crime of violence case, an assault, a violation of chapter 32-23 or a case of resisting arrest, or in an equivalent juvenile delinquency adjudication, there may have been an exchange of blood or other bodily fluids from the defendant or the juvenile to the officer, the officer may request that the Department of Health provide counseling, testing for infection by blood-borne pathogens, and referral for appropriate health care and support services to the officer through its public health services. Such referral does not include any requirement that the Department of Health bear any responsibility for provision of such health care or support services to the officer.

Source: SL 1992, ch 172, § 2; SL 1993, ch 184, § 6.

23A-35B-7. Emergency medical services person's request for information or testing of source individual.

An emergency medical services person who is a victim may request in writing to the source individual, or if the source individual is deceased, to a relative of the source individual or to the source individual's estate, for medical records or information concerning blood-borne pathogens. If the source individual, a relative, or the estate denies the request or does not provide a response within three business days, the emergency medical services person may file a petition with the circuit court to require the source individual to provide the information or to be tested for blood-borne pathogens by the Department of Health and that an order be obtained for the purpose of taking a blood sample from the source individual for testing. The petition shall state that the emergency medical services person believes there was an exchange of blood, semen, or other bodily fluids from the source individual to the emergency medical services person and shall state the factual basis for believing there was such an exchange. The court shall hold a hearing at which both the emergency medical services person and the source individual, a relative, or the estate may be present. If the court finds probable cause to believe that there was an exchange of blood, semen, or other bodily fluids from the source individual to the emergency medical services person, the court may issue an order for the purpose of taking a blood sample from the source individual for testing for blood-borne pathogens. If the source individual is not available for testing, the court may order a release of medical information from the source individual's medical providers to the emergency medical services person.

Source: SL 2010, ch 132, § 2.

23A-35B-8. Mandatory HIV testing of persons convicted of prostitution or solicitation of prostitution.

Any person convicted of prostitution or solicitation of prostitution shall be required, with or without that person's consent, to undergo a standard diagnostic test for human immunodeficiency virus (HIV) under the testing protocol of the Department of Health.

Source: SL 2012, ch 134, § 1.

23A-35B-9. Time for HIV testing.

After conviction, but prior to sentencing, the court shall order the convicted person to submit to an HIV test and shall issue a warrant to collect a blood sample from that person. A health professional licensed or certified to do so shall take the blood samples required for testing and forward them to the Department of Health. The Department of Health shall initiate the test for HIV within forty-eight hours after the department receives the blood sample. If the screening test required by this section indicates the presence of antibodies to HIV, the court shall order the person to undergo a confirmatory test.

Source: SL 2012, ch 134, § 2.

23A-35B-10. Convicted person to pay cost of testing.

The court shall order the convicted person to pay the cost of the testing. The cost shall be treated as any other court cost or fine under chapter 23A-27. If the person tested is an inmate under the jurisdiction of the Department of Corrections, the cost of testing shall be taken from the person's inmate account pursuant to § 24-2-29.

Source: SL 2012, ch 134, § 3.

23A-35B-11. Confidentiality of test results.

The final test results shall be reported to the person tested along with precautionary, medical care, and counseling information. Except as provided in § 23A-35B-12, the results of the test shall remain confidential.

Source: SL 2012, ch 134, § 4.

23A-35B-12. Petition for release of test results--Hearing.

Any person who may have had sexual relations with or otherwise exchanged bodily fluids with the tested person may petition the court to receive the results of the HIV test. The petition shall state that the petitioner believes there was an exchange of blood, semen, or other bodily fluids with the tested person and shall state the factual basis for believing there was such an exchange. The court shall hold a hearing at which both the petitioner and the tested person may be present. If the court finds probable cause that there was an exchange of blood, semen, or other bodily fluids, the court may issue an order releasing the test results to the petitioner.

Source: SL 2012, ch 134, § 5.

23A-35B-13. Test results not to be used in criminal prosecution--Confidentiality.

The results of the test may not be used as evidence in any criminal prosecution. All persons involved in carrying out the provisions of §§ 23A-35B-8 to 23A-35B-12, inclusive, shall act in a manner that will protect the confidentiality of the petitioner and the person tested, including sealing relevant court records as provided in § 23A-35B-5.

Source: SL 2012, ch 134, § 6.