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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
hese cases include studies of family members of AIDS patients who have kissed the patient and shared toothbrushes, drinking glasses, etc. "Researchers have found HIV in saliva in low concentrations, but those low concentrations, together with the studies described above and the absence of a single documented case of transmission are strong evidence
that HIV cannot be transmitted through saliva." This is close as the experts came to a categorical statement.
The declarations also note there have been no documented cases of AIDS transmission through biting. Categorical statements are again avoided, but Dr. Volberding goes so far as to state "there is no reason to think HIV is transmitted by biting."
The declarations also give information on AIDS testing, beginning with the fact that AIDS testing is a test not for the HIV virus but for the antibodies the body creates in its attempt (ultimately futile) to destroy the virus. The antibodies are not developed until three to six months after infection, depending on the person. "The only way for a person actually or potentially exposed to HIV to know if he or she has been infected is to have him or herself tested for antibodies twice, once three months after the possible exposure and again six months after the possible exposure." There are pitfalls to testing the person suspected of transmitting HIV to someone else. If the suspected transmitter tests negative, it does not mean they do not have the virus, but only that their body may not have had time to develop antibodies. If the suspected transmitter tests positive, it means only that they have exposed someone to HIV, which does not mean that the person exposed will inexorably become infected.
At the first hearing, real party agreed with respondent court that "chances are very slight" that HIV can be transmitted by saliva. Real party characterized Dr. Maring's phrase " theoretically possible" as meaning "highly remote." Real party also conceded that petitioner's declarations were "certainly accurate and unassailable." Furthermore, real party agreed with the court that testing petitioner "doesn't really tell the deputy anything, except she is possibly exposed to it. But then the deputy would have to be tested. . . ."
Respondent court made a factual finding "that there is no indication at this time before me that the . . . AIDS virus . . . transmitted." The court did find that real party had established probable cause that "saliva was transferred." Because the statute requires only probable cause of transfer of saliva by a bite, the court ordered that petitioner's blood be tested.
This court denied a stay of the blood testing (although stayed most of the permissible disclosure of the test results under the statute). The state of the
record was considered inadequate and at points confusing, especially since substantial conflicting medical opinion was presented by real party for the first time in this court in its opposition to a stay. Real party, albeit belatedly, demonstrated there was significant disagreement among medical experts concerning aspects and issues of AIDS testing crucial to the resolution of this case. Accordingly, we remanded the matter to respondent court for further evidentiary hearings so the issues could be decided on a clear record.
The trial court was asked to make a finding of fact on the question whether the AIDS virus can be transmitted through saliva. Our order also made reference to petitioner's argument that the blood testing had to be justified by a balancing of the harm of the intrusion against the reasonableness of the testing. Since petitioner's experts contended that testing the biter
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