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Current Status Bill Number:View additional legislative information at the LPITS web site.126 Ratification Number:214 Act Number:218 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19990112 Primary Sponsor:Passailaigue All Sponsors:Passailaigue, Elliott Drafted Document Number:l:\s-res\elp\001test.jjj.doc Date Bill Passed both Bodies:20000118 Date of Last Amendment:19990422 Governor's Action:S Date of Governor's Action:20000225 Subject:Sex crimes, offenses; courts may allow testing of offender for certain communicable diseases; Medical, Solicitors History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ ------ 20000331 Act No. A218 ------ 20000225 Signed by Governor ------ 20000223 Ratified R214 House 20000118 Read third time, enrolled for ratification House 20000113 Read second time House 19990603 Request for debate withdrawn by Representative Clyburn Witherspoon House 19990603 Request for debate withdrawn by Representative Limehouse Sharpe Whatley McMahand House 19990602 Request for debate withdrawn by Representative Knotts House 19990601 Request for debate by Representative Knotts J.H. Neal F. Smith Sharpe McMahand Davenport Lee Whatley Clyburn Witherspoon Allen Rutherford Limehouse House 19990526 Committee report: Favorable 25 HJ House 19990427 Introduced, read first time, 25 HJ referred to Committee Senate 19990427 Read third time, sent to House Senate 19990422 Read second time Senate 19990422 Committee amendment adopted Senate 19990421 Committee report: Favorable with 11 SJ amendment Senate 19990112 Introduced, read first time, 11 SJ referred to Committee Senate 19981118 Prefiled, referred to Committee 11 SJ Versions of This Bill Revised on April 21, 1999 - Word format Revised on April 22, 1999 - Word format Revised on May 26, 1999 - Word format
(A218, R214, S126)
AN ACT TO AMEND SECTION 16-3-740, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TESTING OF CERTAIN CONVICTED OFFENDERS FOR HEPATITIS B, SEXUALLY TRANSMITTED DISEASES, AND HUMAN IMMUNODIFICIENCY VIRUS (HIV), SO AS TO REQUIRE A SOLICITOR TO PETITION THE COURT FOR TESTING AFTER A PERSON HAS BEEN CHARGED WITH AN OFFENSE, IF REQUESTED BY THE VICTIM; TO ESTABLISH PROBABLE CAUSE THAT THE OFFENDER COMMITTED THE OFFENSE AND THAT BODY FLUIDS WERE TRANSMITTED AS THE CRITERIA FOR ISSUING THE ORDER; TO PROVIDE FOR THE DISCLOSURE OF THE TEST RESULTS TO LIMITED PERSONS, INCLUDING THE VICTIM, THE VICTIM'S ATTORNEY, AND THE OFFENDER'S ATTORNEY; TO REQUIRE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO PROVIDE COUNSELING TO THE OFFENDER IF THE RESULTS ARE POSITIVE AND TO THE VICTIM, IF REQUESTED; TO AUTHORIZE FOLLOW-UP TESTING IF REQUESTED BY THE VICTIM AND IF THE INITIAL RESULTS ARE NEGATIVE; TO REQUIRE THE OFFENDER TO REIMBURSE THE STATE FOR COSTS OF THE TESTS IF THE OFFENDER IS CONVICTED OF THE CRIME; TO AUTHORIZE THE COURT TO ORDER THE COLLECTION OF ADDITIONAL SAMPLES OF BLOOD, SALIVA, AND HAIR FOR SCIENTIFIC TESTING IF THERE IS A SHOWING OF PROBABLE CAUSE THAT THE OFFENDER COMMITTED A CRIME; TO AUTHORIZE THE USE OF THESE SCIENTIFIC TESTS RESULTS IN ANY CRIMINAL PROCEEDING BUT TO PROHIBIT THE USE OF THE HEPATITIS B AND HIV TEST RESULTS CONDUCTED PURSUANT TO THIS ACT IN ANY CRIMINAL TRIAL OF THE OFFENDER; AND TO PROVIDE IMMUNITY FOR CIVIL AND CRIMINAL LIABILITY; AND TO REPEAL SECTION 16-15-255 RELATING TO TESTING OF CONVICTED OFFENDERS FOR CERTAIN SEX-RELATED OFFENSES, HEPATITIS B, SEXUALLY TRANSMITTED DISEASES, AND HIV.
Be it enacted by the General Assembly of the State of South Carolina:
Hepatitis B and HIV testing, release, and use of results for certain offenders
SECTION 1. Section 16-3-740 of the 1976 Code, as amended by Act 430 of 1994, is further amended to read:
"Section 16-3-740. (A) For purposes of this section:
(1) 'Body fluid' means blood, amniotic fluid, pericardial fluid, pleural fluid, synovial fluid, cerebrospinal fluid, semen or vaginal secretions, or any body fluid visibly contaminated with blood.
(2) 'HIV' means the human immunodeficiency virus.
(3) 'Offender' includes a person under seventeen years of age.
(B) Upon the request of a victim who has been exposed to body fluids during the commission of a criminal offense, or upon the request of the legal guardian of a victim who has been exposed to body fluids during the commission of a criminal offense, the solicitor must, at any time after the offender is charged, or at any time after a petition has been filed against an offender in family court, petition the court to have the offender tested for Hepatitis B and HIV. An offender must not be tested under this section for Hepatitis B and HIV without a court order. To obtain a court order, the solicitor must demonstrate the following:
(1) the victim or the victim's legal guardian requested the tests;
(2) there is probable cause that the offender committed the offense;
(3 ) there is probable cause that during the commission of the offense there was a risk that body fluids were transmitted from one person to another; and
(4) the offender has received notice of the petition and notice of his right to have counsel represent him at a hearing.
The results of the tests must be kept confidential and disclosed only to the solicitor who obtained the court order. The solicitor shall then notify only those persons designated in subsection (C).
(C) The tests must be administered by the Department of Health and Environmental Control through the local county health department or the medical professional at the state or local detention facility where the offender is imprisoned or detained. If the tests are performed prior to conviction or adjudication, the results of the tests must be reported only to the solicitor who obtained the court order. The solicitor shall notify the following persons of the tests results:
(1) the victim or the legal guardian of a victim who is a minor or is mentally retarded or mentally incapacitated;
(2) the victim's attorney;
(3) the offender and a juvenile offender's parent or guardian; and
(4) the offender's attorney.
The results of the tests shall be provided to the designated recipients with the following disclaimer: 'The tests were conducted in a medically approved manner, but tests cannot determine infection by Hepatitis B or HIV with absolute accuracy. Additionally, the testing does not determine exposure to or infection by other sexually transmitted diseases. Persons receiving the tests results should continue to monitor their own health, seek retesting in approximately six months, and should consult a physician as appropriate'.
The solicitor also shall provide to the state or local correctional facility where the offender is imprisoned or detained and the Department of Health and Environmental Control the test results for HIV and Hepatitis B which indicate that the offender is infected with the disease. The state or local correctional facility where the offender is imprisoned or detained shall use this information solely for the purpose of providing medical treatment to the offender while the offender is imprisoned or detained. The State shall pay for the tests. If the offender is subsequently convicted or adjudicated delinquent, the offender or the parents of an adjudicated offender must reimburse the State for the costs of the tests unless the offender or the parents of the adjudicated offender are determined to be indigent.
If the tests given pursuant to this section indicate infection by Hepatitis B or HIV, the Department of Health and Environmental Control shall be provided with all tests results and must provide counseling to the offender regarding the disease, syndrome, or virus. The Department of Health and Environmental Control must also provide testing and counseling for the victim at the victim's request and referral for appropriate health care and support services.
(D) At the request of the victim or the victim's legal guardian, the court may order a follow-up HIV test and counseling for the offender if the initial HIV test was negative. The follow-up test and counseling shall be performed on dates that occur six weeks, three months, and six months following the initial test. An order for a follow-up test shall be terminated if the offender obtains an acquittal on, or dismissal of, all charges for which testing was ordered.
(E) If, for any reason, the testing requested under subsection (B) has not been undertaken, upon request of the victim or the victim's legal guardian, the court shall order the offender to undergo testing for Hepatitis B and HIV following conviction or delinquency adjudication. The testing shall be administered by the Department of Health and Environmental Control through the local county health department or the medical professional at the state or local detention facility where the offender is imprisoned or detained. The results shall be disclosed in accordance with the provisions of subsection (C).
(F) Upon a showing of probable cause that the offender committed a crime, the collection of additional samples, including blood, saliva, head or pubic hair may be contemporaneously ordered by the court so that the State may conduct scientific testing, including DNA analysis. The results of the scientific testing, including DNA analysis, may be used for evidentiary purposes in any court proceeding.
(G) Any person or entity who administers tests ordered pursuant to this section and who does so in accordance with this section and accepted medical standards for the administration of these tests shall be immune from civil and criminal liability arising from his conduct.
(H) Any person who discloses information in accordance with the provisions of this section or who participates in any judicial proceeding resulting from the disclosure and who does so in good faith and without malice shall have immunity from civil or criminal liability that might otherwise be incurred or imposed in an action resulting from the disclosure.
(I) Results of tests performed pursuant to this section shall not be used as evidence in any criminal trial of the offender except as provided for in subsection (F)."
Severability provisions
SECTION 2. If any provision of this act or the application thereof to any person is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application and to this end the provisions of this act are severable.
Repeal
SECTION 3. Section 16-15-255 of the 1976 Code is repealed.
Time effective
SECTION 4. This act takes effect upon approval by the Governor.
Ratified the 23rd day of February, 2000.
Approved the 25th day of February, 2000.
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