Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 459 (2022GS)

Sponsor

Rep. Judkins, M.

Final action

House/ filed 3/4/2022

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• provides a process to obtain a court order if an alleged sexual offender refuses an HIV test at the request of an alleged victim.

Every vote on this bill

Bill text

HIV TESTING MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Marsha Judkins
Senate Sponsor: 
 Keith Grover
LONG TITLE
General Description:
This bill creates a procedure for HIV testing of an alleged sexual offender if the alleged
sexual offender refuses testing.
Highlighted Provisions:
This bill:
▸ provides a process to obtain a court order if an alleged sexual offender refuses an
HIV test at the request of an alleged victim.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-5-502
, as last amended by Laws of Utah 2021, Chapter 58
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-5-502
 is amended to read:
76-5-502.
Request for testing -- Mandatory testing -- Liability for costs.
(1) (a) An alleged victim of [
the
] 
a
 sexual offense, the parent or guardian of an alleged
victim who is a minor, or the guardian of an alleged victim who is a vulnerable adult as defined
in Section 
62A-3-301
 may request that the alleged sexual offender against whom [
the
] 
an
indictment, information, or petition is filed or regarding whom the arrest has been made be
tested to determine whether the alleged offender is an HIV positive individual.
(b) If the alleged victim under Subsection (1)(a) has requested that the alleged offender
be tested, the alleged offender shall submit to being tested not later than 48 hours after [
an
] 
the
request is conveyed to the alleged offender under Subsection (2), the
 information or indictment
is filed
,
 or an order 
or warrant
 requiring a test is signed
, whichever is earlier
.
[
(c) If the alleged victim under Subsection (1)(a) requests that the alleged offender be
tested more than 48 hours after an information or indictment is filed, the offender shall submit
to being tested not later than 24 hours after the request is made.
]
(2) A request for testing under Subsection (1) may be made by the alleged victim, or by
another individual on behalf of the alleged victim, by written communication to a prosecuting
attorney, victim advocate, or other law enforcement officer involved in the investigation,
information, or indictment. The recipient of the request, within one business day after receipt,
shall convey the request to the alleged offender's counsel of record, if the offender is
represented by counsel, or to the alleged offender, if the alleged offender is not represented by
counsel.
(3) (a) If the alleged offender refuses to be tested after a request by the alleged victim
under Subsection (1):
(i) the alleged victim, another individual on behalf of the alleged victim, or the
prosecuting attorney may petition the district court for an order requiring the alleged offender
to submit to testing to determine whether the alleged offender is an HIV positive individual; or
(ii) a law enforcement agency involved in the investigation, information, or indictment
may submit on behalf of the victim, by electronic or other means, an ex parte request for a
warrant ordering testing to determine whether the alleged offender is an HIV positive
individual.
(b) If a petition is filed under Subsection (3)(a)(i), the petitioning individual shall cause
the petition to be served on the alleged offender.
(c) The court may decide the petition on motion or, if the court determines material
facts are in dispute, schedule a hearing.
(d) If the court finds that the alleged offender refused to consent to the testing or was
unable to consent, the court shall issue an order or warrant requiring the alleged offender to
submit to testing within 48 hours to determine whether the alleged offender is an HIV positive
individual, and that reasonable force may be used to obtain the sample, if necessary.
(e) If the court schedules a hearing, the court shall:
(i) set a time for the hearing within 10 days after the petition is filed;
(ii) give the petitioner and the alleged offender notice of the hearing at least 48 hours
prior to the hearing;
(iii) notify the alleged offender that the alleged offender may have an attorney present
at the hearing; and
(iv) conduct the hearing in camera.
(f) The court may not require the alleged victim to attend the hearing in person absent
good cause.
(4) A sample drawn in accordance with an order or warrant issued under this section
shall be sent for testing to:
(a) the Department of Health;
(b) the local health authority; or
(c) a qualified medical laboratory.
[
(d)
] 
(5)
 As soon as practicable, the results of [
the
] 
a
 test conducted pursuant to this
section shall be provided 
by the testing entity to the prosecuting attorney, who shall, within one
business day after receipt, convey the results of the test
 to:
[
(i)
] 
(a)
 the alleged victim who requested the test;
[
(ii)
] 
(b)
 the parent or guardian of the alleged victim, if the alleged victim is a minor;
[
(iii)
] 
(c)
 the legal guardian of the alleged victim if the victim is a vulnerable adult as
defined in Section 
62A-3-301
;
[
(iv)
] 
(d)
 the alleged offender; and
[
(v)
] 
(e)
 the parent or legal guardian of the alleged offender, if the 
alleged
 offender is a
minor.
[
(e)
] 
(6)
 If follow-up testing is medically indicated, the results of follow-up testing of
the alleged offender shall be sent as soon as practicable to 
the prosecuting attorney, who shall,
within one business day after receipt, convey the results of the test to
:
[
(i)
] 
(a)
 the alleged victim;
[
(ii)
] 
(b)
 the parent or guardian of the alleged victim if the alleged victim is [
younger
than 18 years of age
] 
a minor
;
[
(iii)
] 
(c)
 the legal guardian of the alleged victim, if the victim is a vulnerable adult as
defined in Section 
62A-3-301
;
[
(iv)
] 
(d)
 the alleged offender; and
[
(v)
] 
(e)
 the parent or legal guardian of the alleged offender, if the 
alleged
 offender is a
minor.
[
(2)
] 
(7)
 If the [
mandatory test has not been conducted, and the
] alleged offender [
or
alleged minor offender is already
] 
is
 confined in a county jail, state prison, or a secure youth
corrections facility, the alleged offender shall be tested while in confinement.
[
(3)
] 
(8)
 (a) The secure youth corrections facility
, state prison,
 or county jail shall cause
the [
blood specimen
] 
sample
 of the alleged offender under Subsection (1) confined in that
facility to be taken
, either by the facility's medical personnel or by a qualified third party,
 and
shall forward the [
specimen
] 
sample
 to:
(i) the Department of Health; [
or
]
[
(ii) an alternate testing facility, as determined by the secure youth corrections facility
or county jail, if testing under Subsection (3)(a)(i) is unavailable.
]
(ii) the local health authority; or
(iii) a qualified medical laboratory.
(b) The 
testing
 entity that receives the [
specimen
] 
sample
 under Subsection [
(3)(a)
] 
(4)
shall provide the result to the [
prosecutor
] 
prosecuting attorney
 as soon as practicable for
release to the parties as described in Subsection [
(1)(d) or (e)
] 
(5) or (6)
.
[
(4) The Department of Corrections shall cause the blood specimen of the alleged
offender defined in Subsection (1) confined in any state prison to be taken and shall forward
the specimen to the Department of Health as provided in Section 
64-13-36
.
]
[
(5)
] 
(9)
 The alleged offender who is tested is responsible upon conviction for the costs
of testing 
and any legal proceedings necessary to obtain an order or warrant authorizing the
testing
, unless the alleged offender is indigent. [
The
] 
If the alleged offender is indigent, the
costs will [
then
] be paid by the Department of Health from the General Fund.