NCJ Number
125177
Journal
Judges' Journal Volume: 29 Issue: 2 Dated: (Spring 1990) Pages: 22-25,66-69
Date Published
1990
Length
8 pages
Annotation
This article examines the fourth amendment issues that a criminal court judge may be faced with to make a decision to order a defendant to submit to an involuntary HIV blood test.
Abstract
The "probable cause plus" test of Schmerber and Winston and the noncriminal balancing test of Skinner and Von Raab are applied to analysis of situations in which requests for involuntary court-ordered HIV tests are made. Most requests are made to ascertain pretrial release; to determine if special courtroom precautions are required if the defendant is present; and to provide medical care, if necessary, for a victim of the defendant's conduct. Other reasons for requests include evidence for a crime as determined by certain State laws that criminalize certain behavior engaged in by HIV-positive persons and sentencing decisions determining conditions of probation and length of incarceration. In deciding these issues, the Constitution requires a judge to make an informed decision based upon current medical knowledge.