- Defendant must be detained for 24 hours for investigation and testing if there is probable cause to believe another person was exposed to defendant in a manner creating a risk of transmission of HIV or Hepatitis B.
- In some circumstances, a defendant may also be tested under state public health rules if there has been a risk of exposure to another person.
- Defendants charged with certain sex offenses can also be tested for a number of sexually transmitted diseases at the request of the victim.
Detaining Defendant for Testing
Under G.S. 15A-534.3, if a judicial official conducting an initial appearance or first appearance finds probable cause to believe that an individual (arresting officer, victim, bystander, witness, etc.) had a nonsexual exposure to the defendant in a manner that poses a “significant risk” of transmission of the AIDS virus or Hepatitis B, the judicial official must order the defendant to be detained up to 24 hours for investigation by public health officials, and for testing if required by public health officials in accordance with G.S. 130A-144 and 130A-148. The judicial official ordering the hold should complete side two of form AOC-CR-270.
What counts as a “significant risk"?
As explained on the AOC-CR-270 form, “mere contact of the defendant’s bodily fluids with a subject’s clothing or unbroken skin does not pose a significant risk of transmission of either virus. A significant risk of transmission occurs when the defendant’s bodily fluids come into contact with the subject’s broken skin or mucous membranes. For example, a bite by the defendant that does not break the subject’s skin does not pose a significant risk of transmission. Contact that may pose a significant risk includes things like a needlestick or a bite that actually breaks the subject’s skin.”
Also see the related entry on Pretrial Release – Eligibility and Conditions, Sections D.3 (Communicable Diseases) and D.5 (Public Health).
Testing Defendant under State Rules
State rules also allow for the testing of any person for HIV, hepatitis B, and hepatitis C, in certain limited situations where there has been a risk of exposure. See Title 10A, N.C. Administrative Code, Chapter 41A, Rule 0202(4) (HIV); Rule 0203(b)(4) (hepatitis B); Rule 41A.0214(4) (hepatitis C).
- Testing for HIV
If a health care worker or any other person experiences a needlestick or other nonsexual non-intact skin or mucous membrane exposure to blood or body fluids that would pose a significant risk of transmitting HIV if the source person was positive for the disease (e.g., a defendant who bites an officer while being arrested, and the bite breaks the skin), the rules require the source person’s attending physician to reveal the source’s HIV status to the attending physician of the exposed person. See Title 10A, N.C. Administrative Code, Chapter 41A, Rule 0202(4) (HIV). If the infection status of the source is not known, the attending physician for the source shall discuss the exposure with the source and test him or her for HIV. The attending physician of the source must notify the exposed person’s attending physician of the source’s HIV status. In addition, the attending physician must offer the exposed person testing for HIV and must “instruct the exposed person regarding the necessity for protecting confidentiality.”
- Testing for Hepatitis B
Similarly, if a needlestick or nonsexual exposure poses a significant risk of transmitting hepatitis B, Title 10A, N.C. Administrative Code, Chapter 41A, Rule 0203(b)(4) (hepatitis B) requires that the source person be tested unless he or she is already known to be infected. The rules do not specify who must perform the test, but it would likely be done at the same time as the HIV test. If it is determined that the source person is infected with hepatitis B virus, the exposed person must receive follow-up treatment that differs depending on whether the exposed person was previously vaccinated against hepatitis B.
- Testing for Hepatitis C
Although G.S. 15A-534.3 does not explicitly refer to testing for hepatitis C, state rules that were adopted in April 2012 do require a source person to be tested for hepatitis C if an exposed person suffers a needlestick or other exposure that poses a significant risk of transmitting hepatitis C. See N.C. Administrative Code, Title 10A, Chapter 41A, Rule 0214(4). If public health officials determine that a person detained under G.S. 15A-534.3 must be tested for HIV and hepatitis B, it is likely they will determine the rules require the person to be tested for hepatitis C as well.
How does this actually work at the jail?
In practice, carrying out these testing procedure may pose some problems. First, neither the source nor the exposed person may have a regular “attending physician” who knows their current positive/negative status and could be called in for testing and consultation. Second, it is somewhat unclear what should be done if the source refuses to cooperate with the required testing. In both instances, the local health director may be asked to intervene and issue an “isolation order” under G.S. 130A-145, which requires the source to be tested in accordance with the rules. If the defendant refuses to cooperate, the state may seek an injunction under G.S. 130A-18 (which is ultimately enforceable by contempt), or pursue a misdemeanor criminal prosecution under G.S. 130A-25. For more information, see the related entry on Communicable Diseases – Prosecution.
Testing Defendant under G.S. 15A-615
After a finding of probable cause or issuance of an indictment for: (i) an offense that involves nonconsensual vaginal, anal, or oral intercourse; (ii) an offense that involves vaginal, anal, or oral intercourse with a child 12 years old or less; or (iii) an offense under G.S. 14-202.1 (indecent liberties) that involves vaginal, anal, or oral intercourse with a child less than 16 years old, G.S. 15A-615 states that the victim (or the parent, guardian, or guardian ad litem of a minor victim) may ask the district attorney to have the defendant tested for the following sexually-transmitted infections: Chlamydia; Gonorrhea; Hepatitis B; Herpes; HIV; or Syphilis.
After receiving this request, the district attorney is required to petition the court for an order requiring the defendant to be tested. If a judge finds that there is probable cause to believe that the alleged sexual contact involved in the offense would pose a significant risk of transmission of a sexually-transmitted infection, the judge must order the defendant to submit to testing. G.S. 15A-615(c) specifies who is responsible for conducting the testing. The Department of Correction must test a defendant in its custody; otherwise, the defendant must be tested by the local health department.
G.S. 15A-615(c) also states that the results of the tests are not admissible as evidence in any criminal proceeding.
Testing Other than Specifically Authorized by Statute or Rules?
Although there do not appear to be any North Carolina cases directly on point, it is also possible that a judge could exercise his or her “inherent authority” to order communicable disease testing of a defendant, even in the absence of a specific authorizing statute. For example, upon a showing of probable cause, the court may be able to issue a search warrant to seize a suspect’s blood for communicable disease testing (or seize the results of any blood tests that have already been performed) as relevant evidence in a criminal case, such as to corroborate that the defendant sexually assaulted and thereby infected the victim. See, e.g., State v. Givens, 2016 WL 3858728 (Ohio App. 4 Dist. 2016) (unpublished) (officer obtained a search warrant for copies of records of defendant’s HIV test in case where defendant was charged with engaging in prostitution after testing positive for HIV); Humphrey v. Appellate Div. of Superior Court, 2003 WL 1930321 (Cal.App. 2 Dist. 2003) (unpublished) (mother’s affidavit provided sufficient probable cause to issue a search warrant to test defendant for HIV, where defendant was charged with sexually assaulting the mother’s children and children could have been exposed); Ormond v. State, 599 So.2d 951 (Miss. 1992) (affirming admission of evidence obtained through a search warrant to test the defendant for gonorrhea).