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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
sible' . . . I do not mean that the possibility of transmission is in any way real or significant. Because it is impossible to prove or conclusively establish negative findings unless the finding in question violates established principles of science, scientists will always say a theoretical possibility exists, even if the possibility is so extremely remote as to be without real value."
At the hearing in respondent court, real party noted that both sides "basically agree" that (1) "it is theoretically possible that can be transferred by a bite"; and (2) "the chances are remote, small, exceedingly small, exceedingly remote, slight, no documented cases in 85,000." Regarding Dr. Conant's opinion that there is "no real risk" of saliva transmission, real party argued: "Our physicians have taken a very different view. They have taken the position that the data to date are not sufficient to discount the concern. They do not feel they can assure a patient there is no risk. And on that basis they consider evidence of the condition of the blood of the biter useful information to them in deciding what type of advice to give their client, their patient, what course of treatment that they are going to prescribe for their patient, what type of monitoring. . . ."
Respondent court reviewed for the record several declarations it found most significant. The court noted that even Dr. Conant acknowledged the theoretical possibility of infection if a large quantity of saliva is injected in
the bloodstream of an uninfected person. Respondent court stressed Dr. Sande's opinion that AIDS infection was more likely through saliva, which has been found to carry small amounts of HIV, in the case of a deep, puncturing bite. The court noted the similar opinion of Dr. Gerberding and her cautionary opinion that "there is insufficient information" to determine just how low the risk of saliva transmission may be.
In its concluding finding, respondent court limited itself to a case of a "bite that punctures and breaks the skin," noting this was not a case of potential saliva transmission through such media as sharing utensils, toothbrushes, etc. From viewing the photographs of the bite the court found it was "a very deep bite . . . into the . . . skin." Noting it had not been asked to make "an estimation of what the percentages or relative possibility of the HIV virus being transmitted," the court found: "I am not going to make any decisions as to whether or not it is highly unlikely, extremely unlikely, remote. Or whether it is low, or high, or under such circumstances it is more likely to occur than others. Because all of the medical doctors that the court relied upon seem to suggest that it could. They say theoretically can. [para.] So with that it could be this court's finding that when, as in this particular case, there is a bite and there is [subcutaneous] exchange, that it is theoretically possible for the HIV virus to be transmitted to the person bitten if the person who does the biting is infected with the HIV virus."
Discussion
Petitioner contends that section 199.97 violates her right under the Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution to be free from unreasonable searches and seizures. She begins with the premise that a blood test is an intrusion of the body, however minimal, and like other bodily intrusions is governed by Fourth Amendment strictures. She concludes that the mandatory scheme of court-ordered testing falls afoul of the Fourth Amendment (1) because it permits a bodily intrusion for removal of blood for testing without probable cause that the AIDS virus will be found, and (2) becaus
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