Bill Text: MI SB1036 | 2013-2014 | 97th Legislature | Engrossed
Bill Title: Health; testing; administration of HIV testing of certain defendants; require expedited testing upon request of victim under certain circumstances. Amends sec. 5129 of 1978 PA 368 (MCL 333.5129).
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2014-10-22 - Assigned Pa 0321'14 With Immediate Effect [SB1036 Detail]
Download: Michigan-2013-SB1036-Engrossed.html
SB-1036, As Passed House, October 2, 2014
SUBSTITUTE FOR
SENATE BILL NO. 1036
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 5129 (MCL 333.5129), as amended by 2004 PA 98.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5129. (1) An individual arrested and charged with
violating section 448, 449, 449a, 450, 452, or 455 of the Michigan
penal code, 1931 PA 328, MCL 750.448, 750.449, 750.449a, 750.450,
750.452, and 750.455, or a local ordinance prohibiting prostitution
or engaging or offering to engage the services of a prostitute may,
upon order of the court, be examined or tested to determine whether
the individual has venereal disease, hepatitis B infection,
hepatitis C infection, HIV infection, or acquired immunodeficiency
syndrome. Examination or test results that indicate the presence of
venereal disease, hepatitis B infection, hepatitis C infection, HIV
infection,
or acquired immunodeficiency syndrome shall must be
reported to the defendant and, pursuant to sections 5114 and 5114a,
to the department and the appropriate local health department for
partner notification.
(2) Except as otherwise provided in this section, if an
individual is arrested and charged with violating section 145a,
338, 338a, 338b, 448, 449, 449a, 450, 452, 455, 520b, 520c, 520d,
520e, or 520g of the Michigan penal code, 1931 PA 328, MCL
750.145a, 750.338, 750.338a, 750.338b, 750.448, 750.449, 750.449a,
750.450, 750.452, 750.455, 750.520b, 750.520c, 750.520d, 750.520e,
and 750.520g, or section 7404 by intravenously using a controlled
substance, or a local ordinance prohibiting prostitution,
solicitation, gross indecency, or the intravenous use of a
controlled substance, the judge or magistrate responsible for
setting the individual's conditions of release pending trial shall
distribute to the individual the information on venereal disease
and
HIV transmission infection
required to be distributed by county
clerks under section 5119(1) and shall recommend that the
individual obtain additional information and counseling at a local
health department testing and counseling center regarding venereal
disease, hepatitis B infection, hepatitis C infection, HIV
infection, and acquired immunodeficiency syndrome. Counseling under
this
subsection shall be is voluntary on the part of the
individual.
(3) If a defendant is bound over to circuit court or
recorder's court for a violation of section 145a, 338, 338a, 338b,
450, 452, 455, 520b, 520c, 520d, 520e, or 520g of the Michigan
penal code, 1931 PA 328, MCL 750.145a, 750.338, 750.338a, 750.338b,
750.450, 750.452, 750.455, 750.520b, 750.520c, 750.520d, 750.520e,
and 750.520g, and the district court determines there is reason to
believe the violation involved sexual penetration or exposure to a
body fluid of the defendant, the district court shall order the
defendant to be examined or tested for venereal disease, hepatitis
B infection, and hepatitis C infection and for the presence of HIV
or an antibody to HIV. The circuit court shall order the
examination or testing if the defendant is brought before it by way
of indictment for any of the violations described in this
subsection. If a defendant is bound over to or brought before the
circuit court for a violation of section 520b, 520c, 520d, 520e, or
520g of the Michigan penal code, 1931 PA 328, MCL 750.520b,
750.520c, 750.520d, 750.520e, and 750.520g, the court shall, upon
the victim's request, order the examination or testing to be done
not later than 48 hours after the date that the information or
indictment is presented and the defendant is in custody or has been
served with the information or indictment. The court shall include
in its order for expedited examination or testing at the victim's
request under this subsection a provision that requires follow-up
examination or testing that is considered medically appropriate
based on the results of the initial examination or testing. Except
as provided in subsection (5), (6), or (7), or as otherwise
provided
by law, the examinations and tests shall must be
confidentially administered by a licensed physician, the
department, of
community health, or a local health department. The
court also shall order the defendant to receive counseling
regarding venereal disease, hepatitis B infection, hepatitis C
infection, HIV infection, and acquired immunodeficiency syndrome,
including, at a minimum, information regarding treatment,
transmission, and protective measures.
(4) Except as otherwise provided in this section, upon
conviction of a defendant or the issuance by the probate court of
an order adjudicating a child to be within the provisions of
section 2(a)(1) of chapter XIIA of the probate code of 1939, 1939
PA 288, MCL 712A.2, for violating section 145a, 338, 338a, 338b,
448, 449, 449a, 450, 452, 455, 520b, 520c, 520d, 520e, or 520g of
the Michigan penal code, 1931 PA 328, MCL 750.145a, 750.338,
750.338a, 750.338b, 750.448, 750.449, 750.449a, 750.450, 750.452,
750.455, 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g, or
section 7404 by intravenously using a controlled substance, or a
local ordinance prohibiting prostitution, solicitation, gross
indecency, or the intravenous use of a controlled substance, the
court
having that has jurisdiction of the criminal prosecution or
juvenile hearing shall order the defendant or child to be examined
or tested for venereal disease, hepatitis B infection, and
hepatitis C infection and for the presence of HIV or an antibody to
HIV. Except as provided in subsection (5), (6), or (7), or as
otherwise
provided by law, the examinations and tests shall must be
confidentially administered by a licensed physician, the
department, of
community health, or a local health department. The
court also shall order the defendant or child to receive counseling
regarding venereal disease, hepatitis B infection, hepatitis C
infection, HIV infection, and acquired immunodeficiency syndrome,
including, at a minimum, information regarding treatment,
transmission, and protective measures.
(5)
If the victim or person individual
with whom the defendant
or child found to be within the provisions of section 2(a)(1) of
chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2,
engaged in sexual penetration or sexual contact or who was exposed
to a body fluid during the course of the crime consents, the court
or probate court shall provide the person or agency conducting the
examinations or administering the tests under subsection (3) or (4)
with the name, address, and telephone number of the victim or
person
individual with whom the defendant or child engaged in
sexual penetration or sexual contact or who was exposed to a body
fluid of the defendant during the course of the crime. If the
victim
or person individual with whom the defendant or child
engaged in sexual penetration during the course of the crime is a
minor
or otherwise incapacitated, the victim's or person's
individual's parent, guardian, or person in loco parentis may give
consent for purposes of this subsection. After the defendant or
child is examined or tested as to the presence of venereal disease,
of hepatitis B infection, of hepatitis C infection, or of HIV or an
antibody to HIV, or if the defendant or child receives appropriate
follow up testing for the presence of HIV, the person or agency
conducting the examinations or administering the tests shall
immediately provide the examination or test results to the victim
or
person individual with whom the defendant or child found to be
within the provisions of section 2(a)(1) of chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.2, engaged in sexual
penetration or sexual contact or who was exposed to a body fluid
during the course of the crime and shall refer the victim or other
person
individual for appropriate counseling.
(6) The examination or test results and any other medical
information obtained from the defendant or child found to be within
the provisions of section 2(a)(1) of chapter XIIA of the probate
code of 1939, 1939 PA 288, MCL 712A.2, by the person or agency
conducting the examinations or administering the tests under
subsection
(3) or (4) shall must be transmitted to the court or
probate court and, after the defendant or child is sentenced or an
order
of disposition is entered, made part of the court record. ,
but
The examination or test
results and any other medical
information
described in this subsection are
confidential and shall
may be disclosed only to 1 or more of the following:
(a) The defendant or child.
(b) The local health department.
(c) The department.
(d)
The victim or other person individual
required to be
informed of the results under this subsection or subsection (5) or,
if
the victim or other person individual
is a minor or otherwise
incapacitated,
to the victim's or other person's individual's
parent, guardian, or person in loco parentis.
(e) Upon written authorization of the defendant or child found
to be within the provisions of section 2(a)(1) of chapter XIIA of
the probate code of 1939, 1939 PA 288, MCL 712A.2, or the child's
parent, guardian, or person in loco parentis.
(f) As otherwise provided by law.
(7) If the defendant is placed in the custody of the
department of corrections, the court shall transmit a copy of the
defendant's examination and test results and other medical
information to the department of corrections. If the child found to
be within the provisions of section 2(a)(1) of chapter XIIA of the
probate code of 1939, 1939 PA 288, MCL 712A.2, is placed by the
probate
court in the custody of a person an individual related to
the child or a public or private agency, institution, or facility,
the probate court shall transmit a copy of the child's examination
or
test results to the person individual
related to the child or
the director of the agency, institution, or facility. A person or
agency that discloses information in compliance with this
subsection or subsection (6) is not civilly or criminally liable
for making the disclosure. A person or agency that receives test
results or other medical information pertaining to HIV infection or
acquired immunodeficiency syndrome under this subsection or
subsection (6) is subject to section 5131 and shall not disclose
the test results or other medical information except as
specifically permitted under that section.
(8) If an individual receives counseling or is examined or
tested under this section and is found to be infected with a
venereal disease, hepatitis B, or hepatitis C or to be HIV
infected,
the individual shall must be referred by the agency
providing the counseling or testing for appropriate medical care.
The department, the local health department, or any other agency
providing counseling or testing under this section is not
financially responsible for medical care received by an individual
as a result of a referral made under this subsection.
(9) The requirements for the distribution of information
concerning venereal disease, counseling concerning venereal
disease, and examining or testing for venereal disease under
subsections (2), (3), and (4) do not apply to an individual charged
with or convicted of violating section 7404 by intravenously using
a controlled substance or violating a local ordinance prohibiting
the intravenous use of a controlled substance.
(10) The court may, upon conviction or the issuance by the
probate court of an order adjudicating a child to be within the
provisions of section 2(a)(1) of chapter XIIA of the probate code
of 1939, 1939 PA 288, MCL 712A.2, order an individual who is
examined or tested under this section to pay the actual and
reasonable costs of that examination or test incurred by the
licensed physician or local health department that administered the
examination or test.
(11) An individual who is ordered to pay the costs of an
examination or test under subsection (10) shall pay those costs
within 30 days after the order is issued or as otherwise provided
by the court. The amount ordered to be paid under subsection (10)
shall
must be paid to the clerk of the court, who shall
transmit
the appropriate amount to the physician or local health department
named in the order. If an individual is ordered to pay a
combination of fines, costs, restitution, assessments, probation or
parole supervision fees, or other payments upon conviction in
addition to the costs ordered under subsection (10), the payments
shall
must be allocated as provided under the probate code of
1939,
1939
PA 288, MCL 710.21 to 712A.32, 712B.41,
the code of criminal
procedure, 1927 PA 175, MCL 760.1 to 777.69, and the William Van
Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.751 to
780.834. An individual who fails to pay the costs within the 30-day
period or as otherwise ordered by the court is guilty of a
misdemeanor punishable by imprisonment for not more than 90 days or
a fine of not more than $100.00, or both.
(12) As used in this section:
(a)
"Sexual contact" includes the intentional touching of the
victim's
or actor's intimate parts or the intentional touching of
the
clothing covering the immediate area of the victim's or actor's
intimate
parts, if that intentional touching can reasonably be
construed
as being for the purpose of sexual arousal or
gratification.means that term as defined in section 520a of
the
Michigan penal code, 1931 PA 328, MCL 750.520a.
(b)
"Sexual penetration" means sexual intercourse,
cunnilingus,
fellatio, anal intercourse, or any other intrusion,
however
slight, of any part of a person's body or of any object
into
the genital or anal openings of another person's body, but
emission
of semen is not required.that
term as defined in section
520a of the Michigan penal code, 1931 PA 328, MCL 750.520a.
(c)
"Victim" includes, but is not limited to, a person
subjected
to criminal sexual conduct in violation of section 520b,
520c,
520d, 520e, or 520g of the Michigan penal code, 1931 PA 328,
MCL
750.520b, 750.520c, 750.520d, 750.520e, and 750.520g.victim as
that term is defined in section 520a of the Michigan penal code,
1931 PA 328, MCL 750.520a.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
