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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
n in "a medically approved manner" and be tested by "a licensed medical laboratory." (§ 199.98, subds. (a), (b).) The blood is to be tested for "medically accepted indications of exposure to or infection by acquired immunity deficiency syndrome (AIDS) virus, AIDS-related conditions, and such communicable diseases for which medically approved testing is readily and economically available as determined by the court." (§ 199.98, subd. (b).)
"Copies of the test results shall be sent to the defendant . . ., each peace officer . . . named in the petition and his or her employing agency, officer, or entity, and if the defendant . . . is incarcerated . . . to the officer in charge and the chief medical officer of the facility in which such person is incarcerated . . . ." (§ 199.97.) "Copies of test results which indicate exposure to or infection by AIDS, AIDS-related conditions, or other communicable diseases shall also be transmitted to the State Department of Health Services." (§ 199.98, subd. (c).) "The court shall order all persons, other than the test subject, who receive test results" pursuant to section 199.97, "to maintain the confidentiality of personal identifying data relating to the
test results except for disclosure which may be necessary to obtain medical or psychological care or advice." (§ 199.98, subd. (e).)
Soon after the biting incident at issue herein, real party filed a motion under section 199.97 seeking an order for a test of petitioner's blood. The motion acknowledged that real party "is wholly without any information as to [petitioner's] susceptibility to an actual infection by Aids Virus, Aids related conditions or other communicable diseases." Real party attached to its motion two police reports of the bite incident, photographs of the bite, and a letter report to real party from Dr. Bradley Maring, the deputy's treating physician.
Dr. Maring's report described the bite as "a deep puncture type bite." It stated " here was no blood in the mouth of [petitioner] at the time; but certainly saliva was transferred." It further stated that the AIDS virus "is in all bodily fluids, although in low concentrations in saliva. Theoretically, a transmission of the AIDS virus (HIV) could have occurred. No such transmission has been reported in the medical literature without blood present -- but it is theoretically possible."
Petitioner opposed the motion on the grounds the statutory blood testing scheme violated the Fourth Amendment and the California constitutional right of privacy. In essence, petitioner's Fourth Amendment claim was premised on the contention that the bodily intrusion of forced blood testing can be justified only if there is at least probable cause that the intrusion will yield evidence of HIV infection. This led to a series of hearings in respondent court concerning the nature of AIDS and its transmission and the possibility of the transfer of HIV by saliva through biting.
At the first hearing, in addition to articles from medical journals petitioner presented the declarations of three experts on AIDS and its treatment: Dr. Marcus Conant, M.D.; Dr. Nancy Padian, Ph.D.; and Dr. Paul Volberding, M.D. Each declarant states that AIDS is spread three ways: " sexually, through blood or blood products, and directly from mother to child [ in utero and during parturition]." Given Dr. Maring's observation that none of petitioner's blood entered the deputy's bloodstream, the experts focused on the question whether saliva alone could transmit HIV. The experts declared that no case of HIV transmission by saliva has been reported, and no infections have been found in individuals exposed to the saliva of an infected person. T
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