2006 Code of Virginia § 18.2-62 - Testing of certain persons for human immunodeficiency virus or hepatitis B or C viruses

18.2-62. Testing of certain persons for human immunodeficiency virus orhepatitis B or C viruses.

A. As soon as practicable following arrest, the attorney for the Commonwealthmay request, after consultation with any victim, that any person charged with(i) any crime involving sexual assault pursuant to this article, (ii) anyoffenses against children as prohibited by 18.2-361, 18.2-366, 18.2-370,and 18.2-370.1, or (iii) any assault and battery in which the victim wasexposed to body fluids of the person arrested, be requested to submit totesting for infection with human immunodeficiency virus or hepatitis B or Cviruses. The person so charged shall be counseled about the meaning of thetest, about acquired immunodeficiency syndrome or hepatitis B or C viruses,and about the transmission and prevention of infection with humanimmunodeficiency virus or hepatitis B or C viruses.

If the person so charged refuses to submit to the test or the competency ofthe person to consent to the test is at issue, the court with jurisdiction ofthe case shall hold a hearing to determine whether there is probable causethat the individual has committed the crime with which he is charged. If thecourt finds probable cause, the court shall order the accused to undergotesting for infection with human immunodeficiency virus or hepatitis B or Cviruses. The court may enter such an order in the absence of the defendant ifthe defendant is represented at the hearing by counsel or a guardian adlitem. The court's finding shall be without prejudice to either theCommonwealth or the person charged and shall not be evidence in anyproceeding, civil or criminal.

B. Upon conviction, or adjudication as delinquent in the case of a juvenile,of any crime involving sexual assault pursuant to this article or anyoffenses against children as prohibited by 18.2-361, 18.2-366, 18.2-370,and 18.2-370.1, the attorney for the Commonwealth may, after consultationwith any victim and, upon the request of any victim shall, request and thecourt shall order the defendant to submit to testing for infection with humanimmunodeficiency virus or hepatitis B or C viruses. Any test conductedfollowing conviction shall be in addition to such tests as may have beenconducted following arrest pursuant to subsection A.

C. Confirmatory tests shall be conducted before any test result shall bedetermined to be positive. The results of the tests for infection with humanimmunodeficiency virus or hepatitis B or C viruses shall be confidential asprovided in 32.1-36.1; however, the Department of Health shall alsodisclose the results to any victim and offer appropriate counseling asprovided by subsection B of 32.1-37.2. The Department shall conductsurveillance and investigation in accordance with 32.1-39.

The results of such tests shall not be admissible as evidence in any criminalproceeding.

The cost of such tests shall be paid by the Commonwealth and taxed as part ofthe cost of such criminal proceedings.

(1990, c. 957; 1992, cc. 500, 587; 1993, c. 512; 2001, c. 862; 2005, c. 661.)