113.2Communicable Diseases

Violation of Isolation Order

G.S. 130A-145 authorizes local health directors to issue isolation orders to people with communicable diseases. An isolation order is a document ordering a person to comply with communicable disease control measures prescribed by the Commission for Public Health. See N.C. Administrative Code, Title 10A, Rule 41A.0201. Although the law does not require the health director to issue an isolation order before seeking prosecution, health directors usually do so.

A person with a communicable disease who violates G.S. 130A-144(f), which requires compliance with communicable disease control measures (see preceding entry), may be prosecuted for a misdemeanor under G.S. 130A-25. The punishment for this misdemeanor is not, however, subject to the provisions of the Structured Sentencing Act. Instead, G.S. 130A-25(b) provides that the defendant may be sentenced to a maximum of two years’ imprisonment and must serve the term of imprisonment in facilities specified in the subsection. In addition, G.S. 130A-25(c) provides that the defendant shall not be released before the completion of his or her term of imprisonment unless and until a district court judge determines that the defendant’s release would not create a danger to the public health.

Criminal Charges If Infected Person Knowingly Transmits Infection to Another

When a person knows he or she is infected with a communicable disease, such as HIV, it may be a crime for that person to act in a manner which risks transmission of the disease to another. The person’s actions could constitute assault with a deadly weapon (the virus being the deadly weapon); assault with a deadly weapon inflicting serious injury (if the victim is infected); attempted first-degree murder; or another felonious assault that contains the “intent to kill” element (assuming, of course, that the state can prove the defendant had intent to kill).

There are no North Carolina appellate cases directly approving the prosecution of this type of crime for the transmission or attempted transmission of a communicable disease, but several other jurisdictions have allowed such charges on similar facts. For a summary list of sample cases, see Jeff Welty, "Knowingly Exposing Others to Communicable Diseases," NC Criminal Law Blog, Feb. 21, 2011.

Additionally, in State v. Monk, 132 N.C. App. 248, disc. review denied, 350 N.C. 845 (1999), the Court of Appeals held that evidence which showed a defendant was HIV-positive was properly admitted at trial where “the State's theory as to the charges of attempted murder and assault with a deadly weapon was that defendant attempted to murder the victim and assaulted her with a deadly weapon by attempting to infect her with the HIV virus.” The trial judge ultimately dismissed the charges of attempted murder and assault with a deadly weapon at the close of the state’s case, so this issue was not fully before the appellate court, but the fact that the evidence was deemed relevant to the state’s case and not unfairly prejudicial to the defendant suggests that such charges would survive appellate review in North Carolina.