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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
bail if they can do so, or release on their own recognizance if they qualify), to compulsory court appearances, and to reasonable searches and seizures of their persons, houses, papers and effects. In appropriate cases, blood samples may be obtained from the accused. (See, e.g., Schmerber v. California, supra, 384 U.S. 757; People v. Trotman (1989) 214 Cal. App. 3d 430 [262 Cal. Rptr. 640]; People v. Deltoro (1989) 214 Cal. App. 3d 1417 [263 Cal. Rptr. 305]; see also 2 LaFave, Search and Seizure: A Treatise on the
Fourth Amendment (2d ed. 1987) § 5.3(c), pp. 497-503, & 1989 pocket pt. p. 36.) Petitioner initiated the operation of the statute by her assault upon the deputy, thus voluntarily placing herself in a different category than the innocent or unsuspecting person she hypothecates as a potential victim of a renegade testing scheme.
Accordingly, we hold that with regard to public safety employees suffering subcutaneous bites in the course of their duties, Proposition 96's mandatory scheme of blood testing does not violate the Fourth Amendment or the California right of privacy.
Petitioner has argued forcefully against the wisdom or practical utility of the statute. Although we uphold the statute's constitutionality, we cannot rule on its wisdom. Proposition 96 mandates costly hearings and testing procedures consuming the time and resources of the courts and public entities. Testing, if frequent, will undoubtedly amount to a measurable drain on the fiscal resources of local governments. While the medical opinions of eminent experts support such testing, and while these opinions contribute to the finding of a special need overcoming Fourth Amendment and right-of-privacy challenges to the testing scheme, those experts themselves opine that the only really effective means of determining HIV infection is for the concerned public safety employees to undergo their own tests. Members of the law enforcement community have recognized the limited utility of the testing procedure at issue. An article in the San Francisco Police Officers Association newspaper advises that police officers should be tested if bitten: "A positive test by the [biting] victim is the only way to determine if the disease has been passed on by the assailant." (The S.F. Police Officers' Assn. Notebook, (Nov. 1989) p. 5.) The article concludes that "it appears that more positive energy could be expended in dealing with the AIDS tragedy through education and research rather than through legislation which is not only difficult to enforce but is also of questionable medical value and seems to only add to the hysteria of the AIDS situation." (Ibid.)
While we agree in principle with much of this sentiment, it is not for courts to judge the wisdom of legislation. We can only hope that assaulted public safety employees, properly medically advised, will realize the sense of security from a biter's negative test is elusive and will submit themselves for AIDS testing.
The petition is denied.
Disposition
The petition is denied.
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