S*0126(Rat #0214, Act #0218 of 2000)  General Bill, By Passailaigue and Elliott
 A BILL 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.-AMENDED TITLE

   11/18/98  Senate Prefiled
   11/18/98  Senate Referred to Committee on Judiciary
   01/12/99  Senate Introduced and read first time SJ-51
   01/12/99  Senate Referred to Committee on Judiciary SJ-51
   04/21/99  Senate Committee report: Favorable with amendment
                     Judiciary SJ-8
   04/22/99  Senate Amended SJ-40
   04/22/99  Senate Read second time SJ-40
   04/27/99  Senate Read third time and sent to House SJ-18
   04/27/99  House  Introduced and read first time HJ-82
   04/27/99  House  Referred to Committee on Judiciary HJ-82
   05/26/99  House  Committee report: Favorable Judiciary HJ-6
   06/01/99  House  Requests for debate-Rep(s). Knotts, Neal, F.
                     Smith, Sharpe, McMahand, Davenport, Lee,
                     Whatley, Clyburn, Witherspoon, Allen, Rutherford
                     and Limehouse HJ-30
   06/02/99  House  Requests for debate removed-Rep(s). Knotts HJ-94
   06/03/99  House  Requests for debate removed-Rep(s). Clyburn and
                     Witherspoon HJ-28
   06/03/99  House  Requests for debate removed-Rep(s). Limehouse,
                     Sharpe, Whatley and McMahand HJ-83
   01/13/00  House  Read second time HJ-37
   01/13/00  House  Roll call Yeas-89  Nays-1 HJ-39
   01/18/00  House  Read third time and enrolled HJ-22
   02/23/00         Ratified R 214
   02/25/00         Signed By Governor
   02/25/00         Effective date 02/25/00
   03/13/00         Copies available
   05/02/00         Act No. 218

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.