18.2-62 - Testing of certain persons for human immunodeficiency virus or hepatitis B or C viruses.
§ 18.2-62. Testing of certain persons for human immunodeficiency virus orhepatitis B or C viruses.
A. As soon as practicable following arrest, the attorney for the Commonwealthmay request, after consultation with any complaining witness, that any personcharged with (i) any crime involving sexual assault pursuant to this article,(ii) any offenses against children as prohibited by §§ 18.2-361, 18.2-366,18.2-370, and 18.2-370.1, or (iii) any assault and battery in which thecomplaining witness was exposed to body fluids of the person arrested, berequested to submit to testing for infection with human immunodeficiencyvirus or hepatitis B or C viruses. The person so charged shall be counseledabout the meaning of the test, about acquired immunodeficiency syndrome orhepatitis B or C viruses, and about the transmission and prevention ofinfection with human immunodeficiency virus or hepatitis B or C viruses.
If the person so charged refuses to submit to the test or the competency ofthe person to consent to the test is at issue, the court with jurisdiction ofthe case shall hold a hearing to determine whether there is probable causethat the individual has committed the crime with which he is charged. If thecourt finds probable cause, the court shall order the accused to undergotesting for infection with human immunodeficiency virus or hepatitis B or Cviruses. The court may enter such an order in the absence of the defendant ifthe defendant is represented at the hearing by counsel or a guardian adlitem. The court's finding shall be without prejudice to either theCommonwealth or the person charged and shall not be evidence in anyproceeding, civil or criminal.
B. At any point following indictment, arrest by warrant, or service of apetition in the case of a juvenile, of any crime involving sexual assaultpursuant 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 theCommonwealth may request, or after consultation with a complaining witnessand, upon the request of the complaining witness shall request, and the courtshall order the defendant to submit to testing for infection with humanimmunodeficiency virus or hepatitis B or C viruses within 48 hours, andfollow-up testing as may be medically appropriate. Any test conductedfollowing indictment, arrest by warrant, or service of a petition shall be inaddition to such tests as may have been conducted following arrest pursuantto subsection A.
C. Confirmatory tests shall be conducted before any test result shall bedetermined to be positive. The results of the tests for infection with humanimmunodeficiency virus or hepatitis B or C viruses shall be confidential asprovided in § 32.1-36.1; however, the Department of Health shall alsodisclose the results to any victim and offer appropriate counseling asprovided by subsection B of § 32.1-37.2. The Department shall conductsurveillance and investigation in accordance with § 32.1-39.
The results of such tests shall not be admissible as evidence in any criminalproceeding.
The cost of such tests shall be paid by the Commonwealth and taxed as part ofthe cost of such criminal proceedings.
(1990, c. 957; 1992, cc. 500, 587; 1993, c. 512; 2001, c. 862; 2005, c. 661;2008, c. 756.)