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2001 SESSION

012233246
SENATE BILL NO. 824
Offered January 10, 2001
Prefiled December 15, 2000
A BILL to amend and reenact § 18.2-62 of the Code of Virginia, relating to testing defendants for HIV.
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Patrons-- Marsh; Delegates: Almand and Howell
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That § 18.2-62 of the Code of Virginia is amended and reenacted as follows:

§ 18.2-62. Testing of certain persons for human immunodeficiency virus.

A. As soon as practicable following arrest, the attorney for the Commonwealth may request, after consultation with any victim, that any person charged with any crime involving sexual assault pursuant to this article or any offenses against children as prohibited by §§ 18.2-361, 18.2-366, 18.2-370, and 18.2-370.1 be requested to submit to testing for infection with human immunodeficiency virus. The person so charged shall be counseled about the meaning of the test, about acquired immunodeficiency syndrome, and about the transmission and prevention of infection with human immunodeficiency virus.

If the person so charged refuses to submit to the test or the competency of the person to consent to the test is at issue, the court with jurisdiction of the case shall,after a finding of hold a hearing to determine whether there is probable cause that the individual has committed the crime with which he is charged,. If such a finding has been made, the court shall order the accused to undergo testing for infection with human immunodeficiency virus. The court may enter such an order in the absence of the defendant if the defendant is represented by counsel or a guardian ad litem and counsel or the guardian ad litem is present at the hearing. The court's finding shall be without prejudice to either the Commonwealth or the person charged and shall not be evidence in any proceeding, civil or criminal.

B. Upon conviction, or adjudication as delinquent in the case of a juvenile, of any crime involving sexual assault pursuant to this article or any offenses against children as prohibited by §§ 18.2-361, 18.2-366, 18.2-370, and 18.2-370.1, the attorney for the Commonwealth may, after consultation with any victim and, upon the request of any victim shall, request and the court shall order the defendant to submit to testing for infection with human immunodeficiency virus. Any test conducted following conviction shall be in addition to such tests as may have been conducted following arrest pursuant to subsection A.

C. Confirmatory tests shall be conducted before any test result shall be determined to be positive. The results of the tests for infection with human immunodeficiency virus shall be confidential as provided in § 32.1-36.1; however, the Department of Health shall also disclose the results to any victim and offer appropriate counseling as provided by subsection B of § 32.1-37.2. The Department shall conduct surveillance and investigation in accordance with § 32.1-39.

The results of such tests shall not be admissible as evidence in any criminal proceeding.

The cost of such tests shall be paid by the Commonwealth and taxed as part of the cost of such criminal proceedings.