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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
o has assaulted an officer. The experts believe test results from the potential source of infection, while not dispositive, provide some useful information. If the results are negative, the chances of HIV infection are believed to be smaller, and a negative result will diminish the officer's anxiety, a factor pertinent to treatment. The experts suggest that a bitten officer would be well advised to have a blood test for clearer information, but HIV
antibodies generally would not develop for three to six months after the bite. Proposition 96 provides a prompt mechanism to obtain some information pertinent to the officer's health and therefore to the governmental special need. The fact that the test of the assailant's blood would not be conclusive does not defeat the government's interest. Responding to an analogous criticism of the probity of the blood tests in Skinner as a measure of drug intoxication or degree of impairment at the time of an accident, the Supreme Court stated that conclusiveness is not a prerequisite for chemical testing of blood. "As we emphasized in New Jersey v. T. L. O., 'it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have "any tendency to make the existence of any fact that is of consequence to the determination [of the point in issue] more probable or less probable than it would be without the evidence."'" (Skinner, supra, 489 U.S. at pp. 631-632 [103 L.Ed. at p. 669] 109 S.Ct. at p. 1421, quoting New Jersey v. T. L. O., supra, 469 U.S. at p. 345 [83 L.Ed.2d at p. 737], in turn quoting Fed.Rule Evid. 401.)
Petitioner and amici rely on numerous decisions for their argument that a theoretical risk of transmission should not justify a Fourth Amendment intrusion. Glover v. Eastern Neb. Com. Office of Retardation, supra, 867 F.2d 461, is distinguishable. In that case a Nebraska state human services agency imposed a policy of mandatory AIDS testing of employees whose work brought them in contact with mentally retarded agency clients, because of the possibility of spreading an infection to a client. In a narrow decision, the Eighth Circuit upheld the district court's ruling that the broad policy was unreasonable. In addition to having been decided before Skinner, Glover was based on factual findings that an infected employee could not infect a retarded client with AIDS by casual contact, and that the risk of a client contracting the disease by biting or scratching an infected staff member was "extraordinarily low . . . approaching zero." (Glover, supra, at p. 463.) The factual findings and medical opinion in the instant case are weighed more heavily in favor of blood testing, especially when the testing is done on a person charged with assaulting an officer. Furthermore, Glover involved an administrative policy and not a statute, and did not involve a special need, established by popular vote, of protecting the health and safety of law enforcement officers.
In Chalk v. U.S. Dist. Court Cent. Dist. of California (9th Cir. 1988) 840 F.2d 701, 706-709 also decided before Skinner, the Ninth Circuit held that a theoretical risk of casual AIDS transmission was insufficient to bar an infected teacher from the classroom. (Accord, Ray v. School Dist. of DeSoto County (M.D.Fla. 1987) 666 F.Supp. 1524 [school officials enjoined from barring AIDS-infected children when no risk of spread of AIDS by casual contact]; Thomas v. Atascadero Unified School Dist., supra, 662 F.Supp. 376
[same, even when child involved in biting incident, because theoretical risk of bite transfer of HIV insufficient to warrant blanket exclusion from educational facilities and opportunities]; Dist
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