A3457

An Act concerning certain serological testing and amending P.L.1993, c.364 and P.L.1996, c.115.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 4 of P.L.1993, c.364 (C.2C:43-2.2) is amended to read as follows:

4. a. In addition to any other disposition made pursuant to law, a court shall order a person convicted of, indicted for or formally charged with, or a juvenile charged with delinquency or adjudicated delinquent for an act which if committed by an adult would constitute, aggravated sexual assault or sexual assault as defined in subsection a. or c. of N.J.S.2C:14-2 to submit to an approved serological test for acquired immune deficiency syndrome (AIDS) [or]; infection with the human immunodeficiency virus (HIV) [or]; any other related virus identified as a probable causative agent of AIDS; or any other blood-borne disease.

The court shall issue such an order only upon the request of the victim and upon application of the prosecutor immediately following the request. The person or juvenile shall be ordered by the court to submit to such repeat or confirmatory tests as may be medically necessary.

As used in this section, "formal charge" includes a proceeding by accusation in the event that the defendant has waived the right to an indictment.

b. A court order issued pursuant to subsection a. of this section shall require testing to be performed as soon as practicable by the Commissioner of the Department of Corrections pursuant to authority granted to the commissioner by sections 6 and 10 of P.L.1976, c.98 (C.30:1B-6 and 30:1B-10), by a provider of health care, at a health facility licensed pursuant to section 12 of P.L.1971, c.136 (C.26:2H-12) or the Juvenile Justice Commission established pursuant to section 2 of P.L.1995, c.284 (C.52:17B-170). If the victim makes the request prior to or at the time of indictment, or accusation if the defendant has waived the right to an indictment, the court order shall require the testing be performed within 48 hours. The order shall also require that the results of the test be reported to the offender and to the appropriate Office of Victim-Witness Advocacy.

c. The Office of Victim-Witness Advocacy, established pursuant to section 5 of P.L.1985, c.404 (C.52:4B-43), shall reimburse the Department of Corrections, Department of Health or the Juvenile Justice Commission for the direct costs incurred by these departments for any tests ordered by a court pursuant to subsection a. of this section. Reimbursement shall be made following a request from the department.

d. In addition to any other disposition authorized, a court may order an offender at the time of sentencing to reimburse the State for the costs of the tests ordered by subsection a. of this section.

e. Upon receipt of the result of a test ordered pursuant to subsection a. of this section, the Office of Victim-Witness Advocacy shall provide the victim with appropriate counseling, referral for counseling and if appropriate, referral for health care. The office shall notify the victim or make appropriate arrangements for the victim to be notified of the test result.

f. The result of a test ordered pursuant to subsection a. of this section shall be confidential and employees of the Department of Corrections, the Juvenile Justice Commission, the Office of Victim-Witness Advocacy, a health care provider, health care facility or counseling service shall not disclose the result of a test performed pursuant to this section except as authorized herein or as otherwise authorized by law or court order. The provisions of this section shall not be deemed to prohibit disclosure of a test result to the person tested.

g. Persons who perform tests ordered pursuant to subsection a. of this section in accordance with accepted medical standards for the performance of such tests shall be immune from civil and criminal liability arising from their conduct.

h. This section shall not be construed to preclude or limit any other testing for acquired immune deficiency syndrome (AIDS) [or]; infection with the human immunodeficiency virus (HIV) [or]; any other related virus identified as a probable causative agent of AIDS; or any other blood-borne disease which is otherwise permitted by statute, court rule or common law.

(cf: P.L.2013, c.140, s.1)

2. Section 7 of P.L.1996, c.115 (C.2C:43-2.3) is amended to read as follows:

7. a. In addition to any other disposition made pursuant to law, a court shall order a person convicted of, indicted for or formally charged with a criminal offense, a disorderly persons offense or a petty disorderly persons offense, to submit to an approved serological test for acquired immune deficiency syndrome (AIDS) [or]; infection with the human immunodeficiency virus (HIV) [or]; any other related virus identified as a probable causative agent of AIDS; or any other blood-borne disease if:

(1) in the course of the commission of the offense, including the immediate flight thereafter or during any investigation or arrest related to that offense, a law enforcement officer, the victim or other person suffered a prick from a hypodermic needle, provided there is probable cause to believe that the defendant is an intravenous user of controlled dangerous substances; or

(2) in the course of the commission of the offense, including the immediate flight thereafter or during any investigation or arrest related to that offense, a law enforcement officer, the victim or other person had contact with the defendant which involved or was likely to involve the transmission of bodily fluids.

The court may order a person to submit to an approved serological test for AIDS [or]; infection with the HIV [or]; any other related virus identified as a probable causative agent of AIDS; or any other blood-borne disease if in the course of the performance of any other law enforcement duties, a law enforcement officer suffers a prick from a hypodermic needle, provided that there is probable cause to believe that the defendant is an intravenous user of controlled dangerous substances, or had contact with the defendant which involved or was likely to involve the transmission of bodily fluids. The court shall issue such an order only upon the request of the law enforcement officer, victim of the offense or other affected person made at the time of indictment, charge or conviction. If a county prosecutor declines to make such an application within 72 hours of being requested to do so by the law enforcement officer, the law enforcement officer may appeal to the Division of Criminal Justice in the Department of Law and Public Safety for that officer to bring the application. The person shall be ordered by the court to submit to such repeat or confirmatory tests as may be medically necessary.

As used in this section, "formal charge" includes a proceeding by accusation in the event that the defendant has waived the right to an indictment.

b. A court order issued pursuant to subsection a. of this section shall require testing to be performed as soon as practicable by the Commissioner of the Department of Corrections pursuant to authority granted to the commissioner by sections 6 and 10 of P.L.1976, c.98 (C.30:1B-6 and 30:1B-10) or by a provider of health care or at a health care facility licensed pursuant to section 12 of P.L.1971, c.136 (C.26:2H-12). The order shall also require that the results of the test be reported to the offender, the appropriate Office of Victim-Witness Advocacy if a victim of an offense is tested, and the affected law enforcement officer. Upon receipt of the result of a test ordered pursuant to subsection a. of this section, the Office of Victim-Witness Advocacy shall provide the victim with appropriate counseling, referral for counseling and if appropriate, referral for health care. The office shall notify the victim or make appropriate arrangements for the victim to be notified of the test result.

c. In addition to any other disposition authorized, a court may order an offender at the time of sentencing to reimburse the State for the costs of the tests ordered pursuant to subsection a. of this section.

d. The result of a test ordered pursuant to subsection a. of this section shall be confidential and health care providers and employees of the Department of Corrections, the Office of Victim-Witness Advocacy, a health care facility or counseling service shall not disclose the result of a test performed pursuant to this section except as authorized herein or as otherwise authorized by law or court order. The provisions of this section shall not be deemed to prohibit disclosure of a test result to the person tested.

e. Persons who perform tests ordered pursuant to subsection a. of this section in accordance with accepted medical standards for the performance of such tests shall be immune from civil and criminal liability arising from their conduct.

f. This section shall not be construed to preclude or limit any other testing for AIDS [or]; infection with the HIV [or]; any other related virus identified as a probable causative agent of AIDS; or any other blood-borne disease which is otherwise permitted by statute, court rule or common law.

(cf: P.L.1996, c.115, s.7)

3. Section 8 of P.L.1996, c.115 (C.2A:4A-43.4) is amended to read as follows:

8. a. In addition to any other disposition made pursuant to law, a court shall order a juvenile charged with delinquency or adjudicated delinquent for an act which, if committed by an adult would constitute a crime, a disorderly persons offense or a petty disorderly persons offense, to submit to an approved serological test for acquired immune deficiency syndrome (AIDS) [or]; infection with the human immunodeficiency virus (HIV) [or]; any other related virus identified as a probable causative agent of AIDS; or any other blood-borne disease if:

(1) in the course of the commission of the act, including the immediate flight thereafter or during any investigation or arrest related to that act, a law enforcement officer, the victim or other person suffered a prick from a hypodermic needle, provided there is probable cause to believe that the juvenile is an intravenous user of controlled dangerous substances; or

(2) in the course of the commission of the act, including the immediate flight thereafter or during any investigation or arrest related to that act, a law enforcement officer, the victim or other person had contact with the juvenile which involved or was likely to involve the transmission of bodily fluids.

The court may order a juvenile to submit to an approved serological test for AIDS [or]; infection with the HIV[or]; any other related virus identified as a probable causative agent of AIDS; or any other blood-borne disease if in the course of the performance of any other law enforcement duties, a law enforcement officer suffers a prick from a hypodermic needle, provided that there is probable cause to believe that the defendant is an intravenous user of controlled dangerous substances, or had contact with the defendant which involved or was likely to involve the transmission of bodily fluids. The court shall issue such an order only upon the request of the law enforcement officer, victim of the offense or other affected person made at the time of indictment, charge or conviction. If a county prosecutor declines to make such an application within 72 hours of being requested to do so by the law enforcement officer, the law enforcement officer may appeal to the Division of Criminal Justice in the Department of Law and Public Safety for that officer to bring the application. The juvenile shall be ordered by the court to submit to such repeat or confirmatory tests as may be medically necessary.

b. A court order issued pursuant to subsection a. of this section shall require testing to be performed as soon as practicable by the Executive Director of the Juvenile Justice Commission pursuant to authority granted to the executive director by sections 6 and 10 of P.L.1976, c.98 (C.30:1B-6 and 30:1B-10) or by a provider of health care or at a health care facility licensed pursuant to section 12 of P.L.1971, c.136 (C.26:2H-12). The order shall also require that the results of the test be reported to the offender, the appropriate Office of Victim-Witness Advocacy if a victim of an offense is tested, and the affected law enforcement officer. Upon receipt of the result of a test ordered pursuant to subsection a. of this section, the Office of Victim-Witness Advocacy shall provide the victim with appropriate counseling, referral for counseling and if appropriate, referral for health care. The office shall notify the victim or make appropriate arrangements for the victim to be notified of the test result.

c. In addition to any other disposition authorized, a court may order a juvenile at the time of sentencing to reimburse the State for the costs of the tests ordered by subsection a. of this section.

d. The result of a test ordered pursuant to subsection a. of this section shall be confidential and health care providers and employees of the Juvenile Justice Commission, the Office of Victim-Witness Advocacy, a health care facility or counseling service shall not disclose the result of a test performed pursuant to this section except as authorized herein or as otherwise authorized by law or court order. The provisions of this section shall not be deemed to prohibit disclosure of a test result to the person tested.

(cf: P.L.1996, c.115, s.8)

4. This act shall take effect immediately.

STATEMENT

This bill expands the availability of serological testing of defendants in sexual assault cases and in cases involving hypodermic needle pricks or transmission of bodily fluids to include testing for any blood-borne diseases.

Under current law, serological testing for AIDS and HIV is authorized in three instances. A defendant convicted of or formally charged with aggravated sexual assault or sexual assault involving sexual penetration can be ordered to submit to a serological test for AIDS or HIV.

A defendant convicted of or formally charged with a crime, disorderly persons offense, or petty disorderly offense can be required to undergo serological testing for AIDS or HIV if a law enforcement officer, victim, or other person, in the course of the commission of the offense, suffers a prick from a hypodermic needle (but there must be probable cause that the defendant is an intravenous drug user) or if the officer, victim, or person had contact with the defendant involving transmission of bodily fluids.

The court also may order testing if a law enforcement officer in the performance of any other law enforcement duties suffers a prick or there was contact with the defendant involving the transmission of bodily fluids.

Serological testing is ordered at the request of the law enforcement officer, victim, or other person at the time of indictment, charge, or conviction. These provisions also apply to juvenile defendants. Additionally, the court can order medically necessary repeat or confirmatory tests.

This bill would expand the court’s authority to order serological testing in these cases to include testing for blood-borne diseases in addition to AIDS and HIV. Other common blood-borne diseases include Hepatitis B, Hepatitis C, Hepatitis D, as well as sexually transmitted diseases. Exposure to blood-borne pathogens can be direct as through an open lesion on the skin or mucous membranes (mouth, eyes, and nose) or indirect through a puncture such as by a contaminated needle.