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California Penal Code Section 1524.1

Legal Research Home > California Laws > Penal Code > California Penal Code Section 1524.1

1524.1.  (a) The primary purpose of the testing and disclosure
provided in this section is to benefit the victim of a crime by
informing the victim whether the defendant is infected with the HIV
virus. It is also the intent of the Legislature in enacting this
section to protect the health of both victims of crime and those
accused of committing a crime. Nothing in this section shall be
construed to authorize mandatory testing or disclosure of test
results for the purpose of a charging decision by a prosecutor, nor,
except as specified in subdivisions (g) and (i), shall this section
be construed to authorize breach of the confidentiality provisions
contained in Chapter 7 (commencing with Section 120975) of Part 4 of
Division 105 of the Health and Safety Code.
   (b) (1) Notwithstanding the provisions of Chapter 7 (commencing
with Section 120975) of Part 4 of Division 105 of the Health and
Safety Code, when a defendant has been charged by complaint,
information, or indictment with a crime, or a minor is the subject of
a petition filed in juvenile court alleging the commission of a
crime, the court, at the request of the victim, may issue a search
warrant for the purpose of testing the accused's blood or oral
mucosal transudate saliva with any HIV test, as defined in Section
120775 of the Health and Safety Code only under the following
circumstances: when the court finds, upon the conclusion of the
hearing described in paragraph (3), or in those cases in which a
preliminary hearing is not required to be held, that there is
probable cause to believe that the accused committed the offense, and
that there is probable cause to believe that blood, semen, or any
other bodily fluid identified by the State Department of Health
Services in appropriate regulations as capable of transmitting the
human immunodeficiency virus has been transferred from the accused to
the victim.
   (2) Notwithstanding Chapter 7 (commencing with Section 120975) of
Part 4 of Division 105 of the Health and Safety Code, when a
defendant has been charged by complaint, information, or indictment
with a crime under Section 220, 261, 261.5, 262, 264.1, 266c, 269,
286, 288, 288a, 288.5, 289, or 289.5, or with an attempt to commit
any of the offenses, and is the subject of a police report alleging
the commission of a separate, uncharged offense that could be charged
under Section 220, 261, 261.5, 262, 264.1, 266c, 269, 286, 288,
288a, 288.5, 289, or 289.5, or of an attempt to commit any of the
offenses, or a minor is the subject of a petition filed in juvenile
court alleging the commission of a crime under Section 220, 261,
261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5,
or of an attempt to commit any of the offenses, and is the subject of
a police report alleging the commission of a separate, uncharged
offense that could be charged under Section 220, 261, 261.5, 262,
264.1, 266c, 269, 286, 288, 288a, 288.5, 289, or 289.5, or of an
attempt to commit any of the offenses, the court, at the request of
the victim of the uncharged offense, may issue a search warrant for
the purpose of testing the accused's blood or oral mucosal transudate
saliva with any HIV test, as defined in Section 120775 of the Health
and Safety Code only under the following circumstances: when the
court finds that there is probable cause to believe that the accused
committed the uncharged offense, and that there is probable cause to
believe that blood, semen, or any other bodily fluid identified by
the State Department of Health Services in appropriate regulations as
capable of transmitting the human immunodeficiency virus has been
transferred from the accused to the victim. As used in this
paragraph, "Section 289.5" refers to the statute enacted by Chapter
293 of the Statutes of 1991, penetration by an unknown object.
   (3) (A) Prior to the issuance of a search warrant pursuant to
paragraph (1), the court, where applicable and at the conclusion of
the preliminary examination if the defendant is ordered to answer
pursuant to Section 872, shall conduct a hearing at which both the
victim and the defendant have the right to be present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (1) shall be admissible.
   (B) Prior to the issuance of a search warrant pursuant to
paragraph (2), the court, where applicable, shall conduct a hearing
at which both the victim and the defendant are present. During the
hearing, only affidavits, counter affidavits, and medical reports
regarding the facts that support or rebut the issuance of a search
warrant under paragraph (2) shall be admissible.
   (4) A request for a probable cause hearing made by a victim under
paragraph (2) shall be made before sentencing in the superior court,
or before disposition on a petition in a juvenile court, of the
criminal charge or charges filed against the defendant.
   (c) (1) In all cases in which the person has been charged by
complaint, information, or indictment with a crime, or is the subject
of a petition filed in a juvenile court alleging the commission of a
crime, the prosecutor shall advise the victim of his or her right to
make this request. To assist the victim of the crime to determine
whether he or she should make this request, the prosecutor shall
refer the victim to the local health officer for prerequest
counseling to help that person understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the accused, to ensure
that the victim understands both the benefits and limitations of the
current tests for HIV, to help the victim decide whether he or she
wants to request that the accused be tested, and to help the victim
decide whether he or she wants to be tested.
   (2) The Department of Justice, in cooperation with the California
District Attorneys Association, shall prepare a form to be used in
providing victims with the notice required by paragraph (1).
   (d) If the victim decides to request HIV testing of the accused,
the victim shall request the issuance of a search warrant, as
described in subdivision (b).
   Neither the failure of a prosecutor to refer or advise the victim
as provided in this subdivision, nor the failure or refusal by the
victim to seek or obtain counseling, shall be considered by the court
in ruling on the victim's request.
   (e) The local health officer shall make provision for
administering all HIV tests ordered pursuant to subdivision (b).
   (f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (b) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
accused unless any initially reactive test result has been confirmed
by appropriate confirmatory tests for positive reactors.
   (g) The local health officer shall have the responsibility for
disclosing test results to the victim who requested the test and to
the accused who was tested. However, no positive test results shall
be disclosed to the victim or to the accused without also providing
or offering professional counseling appropriate to the circumstances.
   (h) The local health officer and victim shall comply with all laws
and policies relating to medical confidentiality subject to the
disclosure authorized by subdivisions (g) and (i). Any individual who
files a false report of sexual assault in order to obtain test
result information pursuant to this section shall, in addition to any
other liability under law, be guilty of a misdemeanor punishable as
provided in subdivision (c) of Section 120980 of the Health and
Safety Code. Any individual as described in the preceding sentence
who discloses test result information obtained pursuant to this
section shall also be guilty of an additional misdemeanor punishable
as provided for in subdivision (c) of Section 120980 of the Health
and Safety Code for each separate disclosure of that information.
   (i) Any victim who receives information from the health officer
pursuant to subdivision (g) may disclose the test results as the
victim deems necessary to protect his or her health and safety or the
health and safety of his or her family or sexual partner.
   (j) Any person transmitting test results or disclosing information
pursuant to this section shall be immune from civil liability for
any actions taken in compliance with this section.
   (k) The results of any blood or oral mucosal transudate saliva
tested pursuant to subdivision (b) shall not be used in any criminal
proceeding as evidence of either guilt or innocence.

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Last modified: March 17, 2014