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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
government has a compelling interest in minimizing the fears of the officer involved, and of securing the best available treatment and the maximum possible information, such as the infection status of the assailant, to facilitate that treatment.
Petitioner counters that no significant government interest is furthered by Proposition 96's provision for blood testing. She contends that the risk of saliva transmission of HIV through a subcutaneous bite is so remote and unlikely that the interests of the government do not justify a bodily intrusion. Thus, she argues, there is no need to test someone who bites a peace officer because there is only a theoretical possibility that the biter's HIV status will be relevant to the state of the officer's health.
The record below establishes that HIV can be found, albeit in small amounts, in saliva. The experts essentially agree there is a theoretical possibility of saliva transfer, and the trial court so found. Although this possibility is extremely low, the majority of the experts agreed that the possibility
cannot be categorically ruled out. The record is replete with expert medical opinion, from some of the very physicians leading the fight against AIDS, that the current state of medical knowledge of AIDS is evolving, that medicine is still "unraveling the mysteries" of the disease, and that the available evidence is insufficient to determine conclusively that HIV cannot be transferred through a bite. They also declare that knowledge of the assailant's HIV status is beneficial to the care and treatment of the victim.
This medical opinion supports the voters' determination that the minimal bodily intrusion of blood testing may legitimately be undertaken. AIDS is a fatal disease with which society is locked in struggle. A public safety employee is at constant risk of coming into contact with the body fluids of an assaultive person. Medical opinion expresses considerable uncertainty concerning AIDS and cannot rule out the possibility that a bitten police officer, whose blood is commingled with saliva, may be infected by the AIDS virus. Dr. Gerberding's words echo here: that the bitten public safety employee "finds little solace or comfort in medical opinion that the chances of infection are extremely remote." We reiterate that the law authorizes the minimal intrusion of a blood test only by court order after a noticed hearing and a finding that the prohibited assault occurred. The test must be performed in a medically approved manner, and the results are subject to highly limited disclosure. These circumstances support the electorate's reasonable determination that society's interest in the health and safety of its peace officers, on balance, justifies the intrusion without the additional probable cause that the assailant is infected. Cases in which officers would have probable cause or some individualized suspicion that their assailants were AIDS-infected are rare, in the vast majority of cases the officers will have no way of knowing the infection status of the person who has bitten them. Thus, a requirement of probable cause that the assailant is an HIV-carrier would not be practical; a reasonable solution is to test those persons who assault peace officers if there is probable cause to believe the officer has been exposed to the assailant's bodily fluids.
Petitioner also asserts that mandatory testing of the assailant serves no useful governmental purpose because the assaulted officer is free to have his or her own blood tested and that test should be dispositive. This contention cannot withstand the numerous statements of medical opinion in this record, which detail the medical usefulness of testing the person wh
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