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Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0672.01 JAP SENATE BILL 98­137

STATE OF COLORADO

BY SENATOR Wham;

also REPRESENTATIVE Adkins.

REREVISED

HEWI

JUDICIARY

A BILL FOR AN ACT

CONCERNING USE OF HIV TESTING INFORMATION IN CASES WHERE THE PERSON TESTED IS CHARGED WITH A CRIME INVOLVING SEXUAL BEHAVIOR.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Specifies that the provisions of the act are procedural and therefore may apply to offenses committed prior to, on, or after the effective date of the act.

Requires a person who is convicted under a municipal ordinance that is comparable to the offense of prostitution or patronizing a prostitute to submit to human immunodeficiency virus (HIV) testing. Specifies that the results of said test shall be reported to either the district or municipal attorney. Authorizes the district or municipal attorney to release the test results to a district or municipal attorney in another jurisdiction if the person is charged in the other jurisdiction with prostitution or patronizing a prostitute.

Requires the court to order any person who has been bound over for trial on a sex offense consisting of sexual penetration that involved sexual intercourse or anal intercourse to submit to HIV testing. Specifies that the test results shall be reported to the district attorney. Requires the district attorney to maintain the confidentiality of the test results except under specified circumstances. If the person tests positive, allows the district attorney to seek information from the state department of public health and environment and the local health department concerning whether the person had been notified prior to the date of the offense that he or she tested positive. Requires the state or local health department employee who first notified the person to provide such oral and written information only about the notice and its date. If such employee is no longer employed by the state or local health department, requires the state or local health department to provide the former employee's name and address, if available, the documentary evidence, and, if the former employee is unavailable, any current employee with personal knowledge of the notice and its date.

Specifies that the disclosure provisions shall not be construed to abridge the statutory confidentiality requirements imposed on the state department of public health and environment and the local health departments except with regard to the court and the parties to the criminal action.

Makes conforming amendments.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Legislative declaration. (1)  The general assembly recognizes the crucial importance of confidentiality with regard to testing for infection with human immunodeficiency virus (HIV), the virus that causes acquired immune deficiency syndrome. The general assembly hereby declares, however, that any person who tests positive for HIV and who subsequently commits a criminal offense involving sexual behavior creates an extraordinarily and unacceptably high risk to society by knowingly exposing others to HIV. The general assembly therefore adopts this act to allow access to HIV test results by prosecutors in extremely limited circumstances in order to protect the public health and safety and prevent the spread of HIV.

(2)  The general assembly hereby finds that the provisions of this act are procedural in nature and do not alter the elements of a crime or deprive a defendant of a defense to a crime. Therefore, the provisions of this act are not retrospective and may constitutionally apply to offenses committed prior to, on, or after the effective date of this act.

SECTION 2.  18­7­201.5, Colorado Revised Statutes, is amended to read:

18­7­201.5.  Acquired immune deficiency syndrome testing for persons convicted of prostitution. (1)  Any person who is convicted of prostitution pursuant to section 18­7­201 OR A COMPARABLE MUNICIPAL ORDINANCE shall be ordered by the court to submit to a blood test for the human immunodeficiency virus (HIV) which THAT causes acquired immune deficiency syndrome. The court shall order that such person shall pay the cost of such test as a part of the costs of the action.

(2)  The results of such test ANY TEST PERFORMED PURSUANT TO THIS SECTION shall be reported to the person tested and TO the district attorney OR THE MUNICIPAL PROSECUTING ATTORNEY OF THE JURISDICTION IN WHICH THE PERSON IS PROSECUTED. The district attorney OR MUNICIPAL PROSECUTING ATTORNEY shall keep the results of such test STRICTLY confidential unless the person is charged with a violation of section 18­7­201.7 or 18­7­205.7 and the results of such test indicate the presence of the human immunodeficiency virus (HIV) which THAT causes acquired immune deficiency syndrome AND:

(a)  THE PERSON IS SUBSEQUENTLY CHARGED WITH A VIOLATION OF SECTION 18­7­201.7 OR 18­7­205.7; OR

(b)  THE PERSON IS SUBSEQUENTLY CHARGED WITH A VIOLATION OF SECTION 18­7­201 OR 18­7­205 OR A COMPARABLE MUNICIPAL ORDINANCE AND THE DISTRICT ATTORNEY OR MUNICIPAL PROSECUTING ATTORNEY FOR THE CHARGING JURISDICTION SEEKS THE TEST RESULTS FOR PURPOSES OF CASE EVALUATION, CHARGING, AND SENTENCING. IN SUCH CASE, THE DISTRICT ATTORNEY OR MUNICIPAL PROSECUTING ATTORNEY WHO OBTAINED THE ORIGINAL CONVICTION PURSUANT TO SECTION 18­7­201 OR A COMPARABLE MUNICIPAL ORDINANCE MAY RELEASE THE TEST RESULTS ONLY TO THE DISTRICT ATTORNEY OR MUNICIPAL PROSECUTING ATTORNEY IN THE CHARGING JURISDICTION OR THE SAID DISTRICT ATTORNEY'S OR MUNICIPAL PROSECUTING ATTORNEY'S DESIGNEE. ANY DISTRICT ATTORNEY OR MUNICIPAL PROSECUTING ATTORNEY WHO RECEIVES TEST RESULTS PURSUANT TO THIS PARAGRAPH (b) SHALL KEEP SAID TEST RESULTS STRICTLY CONFIDENTIAL, EXCEPT AS PROVIDED IN THIS SUBSECTION (2).

(3) (a)  THE TEST ORDERED PURSUANT TO SUBSECTION (1) OF THIS SECTION SHALL BE PERFORMED BY A FACILITY THAT PROVIDES ONGOING HEALTH CARE.

(b)  AN EMPLOYEE OF THE FACILITY THAT PERFORMS THE TEST SHALL PROVIDE, FOR PURPOSES OF PRETRIAL PREPARATION AND IN COURT PROCEEDINGS, ORAL AND DOCUMENTARY EVIDENCE LIMITED TO WHETHER THE PERSON TESTED PURSUANT TO SUBSECTION (1) OF THIS SECTION AND SUBSEQUENTLY CHARGED UNDER SECTION 18­7­201.7 OR 18­7­205.7 WAS PROVIDED NOTICE PRIOR TO THE DATE OF THE OFFENSE THAT HE OR SHE HAD TESTED POSITIVE FOR THE HUMAN IMMUNODEFICIENCY VIRUS (HIV) THAT CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME AND THE DATE OF SUCH NOTICE.

SECTION 3.  18­7­205.5, Colorado Revised Statutes, is amended to read:

18­7­205.5.  Acquired immune deficiency syndrome testing for persons convicted of patronizing a prostitute. (1)  Any person who is convicted of patronizing a prostitute pursuant to section 18­7­205 OR A COMPARABLE MUNICIPAL ORDINANCE shall be ordered by the court to submit to a blood test for the human immunodeficiency virus (HIV) which THAT causes acquired immune deficiency syndrome. The court shall order that such person shall pay the cost of such test as a part of the costs of the action.

(2)  The results of such test ANY TEST PERFORMED PURSUANT TO THIS SECTION shall be reported to the person tested and TO the district attorney OR THE MUNICIPAL PROSECUTING ATTORNEY OF THE JURISDICTION IN WHICH THE PERSON IS PROSECUTED. The district attorney OR THE MUNICIPAL PROSECUTING ATTORNEY shall keep the results of such test STRICTLY confidential unless the person is charged with a violation of section 18­7­201.7 or section 18­7­205.7 and the results of such test indicate the presence of the human immunodeficiency virus (HIV) which THAT causes acquired immune deficiency syndrome AND:

(a)  THE PERSON IS SUBSEQUENTLY CHARGED WITH A VIOLATION OF SECTION 18­7­201.7 OR 18­7­205.7; OR

(b)  THE PERSON IS SUBSEQUENTLY CHARGED WITH A VIOLATION OF SECTION 18­7­201 OR 18­7­205 OR A COMPARABLE MUNICIPAL ORDINANCE AND THE DISTRICT ATTORNEY OR THE MUNICIPAL PROSECUTING ATTORNEY FOR THE CHARGING JURISDICTION SEEKS THE TEST RESULTS FOR PURPOSES OF CASE EVALUATION, CHARGING, AND SENTENCING. IN SUCH CASE, THE DISTRICT ATTORNEY OR MUNICIPAL PROSECUTING ATTORNEY WHO OBTAINED THE ORIGINAL CONVICTION PURSUANT TO SECTION 18­7­205 OR A COMPARABLE MUNICIPAL ORDINANCE MAY RELEASE THE TEST RESULTS ONLY TO THE DISTRICT ATTORNEY OR MUNICIPAL PROSECUTING ATTORNEY IN THE CHARGING JURISDICTION OR THE SAID DISTRICT ATTORNEY'S OR MUNICIPAL PROSECUTING ATTORNEY'S DESIGNEE. ANY DISTRICT ATTORNEY OR MUNICIPAL PROSECUTING ATTORNEY WHO RECEIVES TEST RESULTS PURSUANT TO THIS PARAGRAPH (b) SHALL KEEP SAID TEST RESULTS STRICTLY CONFIDENTIAL, EXCEPT AS PROVIDED IN THIS SUBSECTION (2).

(3) (a)  THE TEST ORDERED PURSUANT TO SUBSECTION (1) OF THIS SECTION SHALL BE PERFORMED BY A FACILITY THAT PROVIDES ONGOING HEALTH CARE.

(b)  AN EMPLOYEE OF THE FACILITY THAT PERFORMS THE TEST SHALL PROVIDE, FOR PURPOSES OF PRETRIAL PREPARATION AND IN COURT PROCEEDINGS, ORAL AND DOCUMENTARY EVIDENCE LIMITED TO WHETHER THE PERSON TESTED PURSUANT TO SUBSECTION (1) OF THIS SECTION AND SUBSEQUENTLY CHARGED UNDER SECTION 18­7­201.7 OR 18­7­205.7 WAS PROVIDED NOTICE PRIOR TO THE DATE OF THE OFFENSE THAT HE OR SHE HAD TESTED POSITIVE FOR THE HUMAN IMMUNODEFICIENCY VIRUS (HIV) THAT CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME AND THE DATE OF SUCH NOTICE.

SECTION 4.  Part 4 of article 3 of title 18, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

18­3­415.5.  Acquired immune deficiency syndrome testing for persons charged with any sexual offense ­ charging information. (1)  FOR PURPOSES OF THIS SECTION, "SEXUAL OFFENSE" IS LIMITED TO A SEXUAL OFFENSE THAT CONSISTS OF SEXUAL PENETRATION, AS DEFINED IN SECTION 18­3­401 (6), INVOLVING SEXUAL INTERCOURSE OR ANAL INTERCOURSE.

(2)  ANY ADULT OR JUVENILE WHO IS BOUND OVER FOR TRIAL SUBSEQUENT TO A PRELIMINARY HEARING OR AFTER HAVING WAIVED THE RIGHT TO A PRELIMINARY HEARING ON A CHARGE OF COMMITTING A SEXUAL OFFENSE SHALL BE ORDERED BY THE COURT TO SUBMIT TO A BLOOD TEST FOR THE HUMAN IMMUNODEFICIENCY VIRUS (HIV) THAT CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME, SAID TEST TO BE ORDERED IN CONJUNCTION WITH THE BLOOD TEST ORDERED PURSUANT TO SECTION 18­3­415. THE RESULTS OF SAID TEST SHALL BE REPORTED TO THE DISTRICT ATTORNEY. THE DISTRICT ATTORNEY SHALL KEEP THE RESULTS OF SUCH TEST STRICTLY CONFIDENTIAL, EXCEPT:

(a)  AS OTHERWISE PROVIDED IN SUBSECTION (3) OF THIS SECTION; AND

(b)  FOR PURPOSES OF CHARGING, PROSECUTING, AND SENTENCING THE PERSON.

(3) (a)  IF THE PERSON TESTED PURSUANT TO SUBSECTION (2) OF THIS SECTION TESTS POSITIVE FOR THE HUMAN IMMUNODEFICIENCY VIRUS (HIV) THAT CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME, THE DISTRICT ATTORNEY MAY CONTACT THE STATE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT OR ANY LOCAL HEALTH DEPARTMENT TO DETERMINE WHETHER SAID PERSON HAD BEEN NOTIFIED PRIOR TO THE DATE OF THE OFFENSE FOR WHICH THE PERSON HAS BEEN BOUND OVER FOR TRIAL THAT HE OR SHE TESTED POSITIVE FOR THE HUMAN IMMUNODEFICIENCY VIRUS (HIV) THAT CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME.

(b)  THE OFFICER OR EMPLOYEE OF THE STATE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT OR OF THE LOCAL HEALTH DEPARTMENT WHO FIRST NOTIFIED THE PERSON TESTED PURSUANT TO SUBSECTION (2) OF THIS SECTION OF HIS OR HER POSITIVE HIV STATUS AND CAN IDENTIFY SAID PERSON SHALL PROVIDE, FOR PURPOSES OF PRETRIAL PREPARATION AND IN COURT PROCEEDINGS, ORAL AND DOCUMENTARY EVIDENCE LIMITED TO WHETHER SAID PERSON WAS PROVIDED NOTICE OF HIS OR HER POSITIVE HIV STATUS AND THE DATE OF SUCH NOTICE. IF SAID OFFICER OR EMPLOYEE IS NO LONGER EMPLOYED BY THE STATE DEPARTMENT OR THE LOCAL HEALTH DEPARTMENT, THE STATE DEPARTMENT OR THE LOCAL HEALTH DEPARTMENT SHALL PROVIDE:

(I)  THE NAME OF AND A CURRENT ADDRESS, IF AVAILABLE, FOR THE FORMER OFFICER OR EMPLOYEE;

(II)  DOCUMENTARY EVIDENCE CONCERNING WHETHER THE PERSON TESTED PURSUANT TO SUBSECTION (2) OF THIS SECTION WAS PROVIDED NOTICE OF HIS OR HER POSITIVE HIV STATUS AND THE DATE OF SUCH NOTICE; AND

(III)  IF THE FORMER OFFICER OR EMPLOYEE IS UNAVAILABLE, ANY OFFICER OR EMPLOYEE WHO HAS KNOWLEDGE REGARDING WHETHER THE PERSON TESTED PURSUANT TO SUBSECTION (2) OF THIS SECTION WAS PROVIDED NOTICE OF HIS OR HER POSITIVE HIV STATUS AND THE DATE OF SUCH NOTICE. SAID OFFICER OR EMPLOYEE SHALL PROVIDE SUCH EVIDENCE FOR PURPOSES OF PRETRIAL PREPARATION AND IN COURT PROCEEDINGS.

(4)  NOTHING IN THIS SECTION SHALL BE INTERPRETED AS ABRIDGING THE CONFIDENTIALITY REQUIREMENTS IMPOSED ON THE STATE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT AND THE LOCAL HEALTH DEPARTMENTS PURSUANT TO PART 14 OF ARTICLE 4 OF TITLE 25, C.R.S., WITH REGARD TO ANY PERSON OR ENTITY OTHER THAN AS SPECIFIED IN THIS SECTION.

SECTION 5.  25­4­1404 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW PARAGRAPHS to read:

25­4­1404.  Use of reports. (1)  The public health reports required to be submitted by sections 25­4­1402 and 25­4­1403 and records resulting from compliance with section 25­4­1405 (1) and held by the state department of public health and environment, any local department of health, or any health care provider or facility, third­party payor, physician, clinic, laboratory, blood bank, or other agency shall be strictly confidential information. Such information shall not be released, shared with any agency or institution, or made public, upon subpoena, search warrant, discovery proceedings, or otherwise, except under any of the following circumstances:

(e)  THE STATE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT AND ANY LOCAL DEPARTMENT OF HEALTH, UPON BEING CONTACTED BY A DISTRICT ATTORNEY PURSUANT TO SECTION 18­3­415.5 (3) (a), C.R.S., SHALL PROVIDE THE INFORMATION SPECIFIED IN SAID SECTION.

(f)   AN OFFICER OR EMPLOYEE OF THE STATE DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT OR OF A LOCAL DEPARTMENT OF HEALTH, PURSUANT TO SECTION 18­3­415.5, C.R.S., SHALL PROVIDE, FOR PURPOSES OF PRETRIAL PREPARATION AND IN COURT PROCEEDINGS, ORAL AND DOCUMENTARY EVIDENCE LIMITED TO WHETHER A PERSON WHO HAS BEEN BOUND OVER FOR TRIAL FOR ANY SEXUAL OFFENSE, AS DESCRIBED IN SECTION 18­3­415.5, C.R.S., WAS PROVIDED NOTICE PRIOR TO THE DATE OF THE OFFENSE THAT HE OR SHE HAD TESTED POSITIVE FOR THE HUMAN IMMUNODEFICIENCY VIRUS (HIV) THAT CAUSES ACQUIRED IMMUNE DEFICIENCY SYNDROME AND THE DATE OF SUCH NOTICE.

SECTION 6.  25­4­1404 (2), Colorado Revised Statutes, is amended to read:

25­4­1404.  Use of reports. (2)  No officer or employee of the state department of public health and environment or local department of health shall be examined in any judicial, executive, legislative, or other proceeding as to the existence or content of any individual's report retained by such department pursuant to this part 14 or as to the existence of the contents of reports received pursuant to sections 25­4­1402 and 25­4­1403 or the results of investigations in section 25­4­1405. This provision shall not apply to individuals who are under restrictive actions JUDICIAL PROCEEDINGS pursuant to section 25­4­1406 or 25­4­1407 OR SECTION 18­3­415.5, C.R.S.

SECTION 7.  25­4­1405 (8) (a) (V), Colorado Revised Statutes, is amended to read:

25­4­1405.  Disease control by the state department of public health and environment and local health departments. (8) (a)  No physician, health worker, or other person and no hospital, clinic, sanitarium, laboratory, or other private or public institution shall test, or shall cause by any means to have tested, any specimen of any patient for HIV infection without the knowledge and consent of the patient; except that knowledge and consent need not be given:

(V)  When a person is bound over for trial of a sexual offense as set forth in section 18­3­415, C.R.S., SECTION 18­3­415 OR 18­3­415.5, C.R.S., OR SUBJECT TO TESTING UNDER SECTION 18­7­201.5 OR 18­7­205.5, C.R.S., and is tested by a health care provider or facility other than one which THAT exclusively provides HIV testing and counseling.

SECTION 8. 18­3­415, Colorado Revised Statutes, is amended to read:

18­3­415. Acquired immune deficiency syndrome testing for persons charged with any sexual offense. Any adult or juvenile who is bound over for trial for any sexual offense involving sexual penetration as defined in section 18­3­401 (6), subsequent to a preliminary hearing or after having waived the right to a preliminary hearing, or any person who is indicted for or is convicted of any such offense, shall be ordered by the court to submit to a blood test for the human immunodeficiency virus (HIV) which causes acquired immune deficiency syndrome, SAID TEST TO BE ORDERED IN CONJUNCTION WITH THE BLOOD TEST ORDERED PURSUANT TO SECTION 18­3­415.5. The results of such test shall be reported to the court or the court's designee, who shall then disclose the results to any victim of the sexual offense who requests such disclosure. Review and disclosure of blood test results by the courts shall be closed and confidential, and any transaction records relating thereto shall also be closed and confidential. If the person who is bound over for trial or who is indicted for or convicted of any such offense voluntarily submits to a blood test for the human immunodeficiency virus (HIV), the fact of such person's voluntary submission shall be admissible in mitigation of sentence if the person is convicted of the charged offense.

SECTION 9.  18­4­412 (2) (c), Colorado Revised Statutes, is amended to read:

18­4­412.  Theft of medical records or medical information ­ penalty. (2)  As used in this section:

(c)  "Proper authorization" means:

(I)  A written authorization signed by the patient or his OR HER duly designated representative; or

(II)  An appropriate order of court; or

(III)  Authorized possession pursuant to law or regulation for claims processing, possession for medical audit or quality assurance purposes, possession by a consulting physician to the patient, or possession by hospital personnel for record­keeping and billing purposes; OR

(IV)  AUTHORIZED POSSESSION PURSUANT TO SECTION 18­7­201.5 OR 18­7­205.5.

SECTION 10.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.