Officers Exposed to Communicable Diseases

I’ve been a little under the weather this week, so I thought I’d do a post about communicable diseases.

One question that comes up frequently is whether an arrestee can be compelled to be tested for a communicable disease when an officer believes that he may have been exposed to a communicable disease carried by the arrestee. For example, suppose that an officer attempts to arrest a suspect in a residential burglary. The arrestee resists, and bites the officer during the scuffle. The officer ultimately subdues the arrestee and brings him to the magistrate’s office to be charged. The officer believes that the arrestee may be HIV positive — he’s a known IV drug user, and the “word on the street” is that he’s infected. The officer is concerned that the biting incident may have transferred the virus, and wants the arrestee tested. What to do?

First, the officer should alert the magistrate to the situation. Under G.S. 15A-534.3, “[i]f a judicial official conducting an initial appearance or first appearance . . . finds probable cause to believe that an individual had a nonsexual exposure to the defendant in a manner that poses a significant risk of transmission of the AIDS virus or Hepatitis B by such defendant, the judicial official shall order the defendant to be detained for a reasonable period of time, not to exceed 24 hours, for investigation by public health officials and for testing . . . if required by public health officials.” The magistrate may wish to consult with public health officials in deciding whether a particular set of circumstances poses a “significant risk of transmission,” as noted on page 25 of my colleague Jessie Smith’s excellent paper on criminal procedure for magistrates. If magistrate makes the required finding of probable cause, she should use side two of form AOC-CR-270 to effectuate the hold, which trumps the defendant’s right to pretrial release for 24 hours or until the public health officials have completed their work, whichever comes first.

Note that the magistrate has no authority to require the defendant to be tested. That decision belongs to the public health officials, who the magistrate should contact immediately upon ordering a hold if she has not already done so. The public health officials will then conduct their own investigation, under G.S. 130A-144, and will determine whether testing is warranted. If so, testing is a “communicable disease control measure,” with which the defendant must comply. (If he doesn’t, he can be charged with a Class 1 misdemeanor under G.S. 130A-25.) The results of the test may be disclosed to the officer under 10A NCAC 41A.0202(4) (the cited provision concerns HIV, but there’s a parallel one for Hepatitis B). If the public health officials determine that testing is not warranted, they will so notify the magistrate, who must dissolve the hold on the defendant.

What if the officer forgets to tell the magistrate, or doesn’t get worried about the situation until the initial appearance has passed? Given that G.S. 15A-534.3 refers to “an initial appearance or first appearance,” can the officer simply tell the district court judge about the situation at the defendant’s first appearance and ask the judge to impose a hold on the defendant? I think so, although I assume that the reference to “first appearance” means a statutory first appearance under G.S. 15A-601, which applies only to defendants charged with felonies. Many districts conduct non-statutory “first appearances” for misdemeanor defendants, while others simply set misdemeanor cases for the arresting officer’s next court date, which becomes the defendant’s de facto first appearance. It isn’t clear whether a judge in either of the latter circumstances has the authority to order the defendant held.

If the case has already progressed beyond the first appearance when the issue arises, or if the judge conducting a nonstatutory first appearance concludes that he lacks the authority to order a hold, the defendant cannot be held for possible testing under G.S. 15A-534.3. But that doesn’t mean that the defendant can’t be tested. The health department’s authority to impose communicable disease control measures is independent of the hold. So the officer can contact the public health department directly and ask it to investigate. Although sometimes the officer, a police attorney, or a prosecutor will request a court order requiring testing, there’s no clear authority for such an order, and the better practice is simply to contact the public health department.

In our example, though, the officer is probably out of luck. According to my colleague Jill Moore, an expert in the area of public health law, many public health officials believe that the risk of transmission from an arrestee’s saliva to an officer’s bloodstream during a bite is extremely low. (It would be different, apparently, if the officer had bitten the arrestee and drawn blood, but I’m guessing that doesn’t happen very often.)