People v. C.S.

583 N.E.2d 726, 222 Ill. App. 3d 348, 164 Ill. Dec. 810, 1991 Ill. App. LEXIS 2201
Appellate Court of Illinois·Decided December 31, 1991·No. 2-89-0644·Published·Cited by 5 cases

Opinion

JUSTICE GEIGER

delivered the opinion of the court:

The defendant, C.S., appeals from the trial court’s orders: (1) that she undergo a blood test for human immunodeficiency virus (HIV) and (2) disclosing the positive test results. We affirm the court’s order, as modified.

The defendant pleaded guilty to unauthorized possession of a hypodermic needle or syringe (Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50) and was sentenced to 270 days in the county jail. Thereafter, pursuant to section 5 — 5—3(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h)), the court ordered the defendant to submit to HIV testing. Section 5 — 5—3(h) mandates such testing for persons convicted of unauthorized possession of a hypodermic needle or syringe.

The defendant's HIV test results were positive, and the State moved for disclosure of the results. The court ordered the defendant to report for treatment information from public health officials. It also ordered that the defendant’s test results be disclosed to all attorneys in the criminal division of the Winnebago County State’s Attorney’s office, to two persons at the Winnebago County jail, and to the Rockford city police supervisor of detectives.

In its order, the court found it necessary and in the public interest that law enforcement personnel be protected against physical harm in future contacts with the defendant and that both law enforcement personnel and lawyers in the State’s Attorney’s office be informed of facts sufficient to initiate or institute proper criminal charges in future contacts with the defendant. The court also found it was in the defendant’s privacy interest that police disclosure be made only to one specific supervisor.

The defendant appealed and was granted stay of the disclosure order, pending appeal. On appeal, the defendant challenges the constitutionality of the section 5 — 5—3(h) requirement that she be tested for HIV or any other causative agent of acquired immunodeficiency syndrome (AIDS). She also argues that, even if she was constitutionally tested for HIV, the court’s disclosure order was an abuse of discretion. We first address the constitutionality of section 5 — 5—3(h).

Section 5 — 5—3(h) provides as follows:

“(h) Whenever a defendant is convicted of an offense under Section 1 or 2 of ‘An Act to regulate the possession, delivery, sale or exchange of hypodermic syringes, hypodermic needles, and similar instruments,’ *** the defendant shall undergo medical testing to determine whether the defendant has been exposed to *** (HIV) or any other identified causative agent of *** (AIDS). Except as otherwise provided by law, the results of such test shall be kept strictly confidential by all medical personnel involved in the testing and must be personally delivered in a sealed envelope to the judge of the court in which the conviction was entered for the judge’s inspection in camera. Acting in accordance with the best interests of the public, the judge shall have the discretion to determine to whom, if anyone, the results of the testing may be revealed.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h).

The “section 1” offense to which section 5 — 5—3(h) refers is the offense of which the defendant was convicted. It is defined as follows:

“§1. No person, not being a physician, dentist, chiropodist or veterinarian licensed under the laws of this State or of the state where he resides, or a registered professional nurse, or a registered embalmer, manufacturer or dealer in embalming supplies, wholesale druggist, manufacturing pharmacist, registered pharmacist, manufacturer of surgical instruments, industrial user, official of any government having possession of the articles hereinafter mentioned by reason of his official duties, nurse or a medical laboratory technician acting under the direction of a physician or dentist, employee of an incorporated hospital acting under the direction of its superintendent or officer in immediate charge, or a carrier or messenger engaged in the transportation of such articles, or the holder of a [statutorily described prescription], or a farmer engaged in the use of such instruments on livestock, or a person engaged in chemical, clinical, pharmaceutical or other scientific research, shall have in his possession a hypodermic syringe, hypodermic needle, or any instrument adapted for the use of controlled substances or cannabis by subcutaneous injection.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50.

In her first argument, the defendant refers to the intrusive nature of the mandatory blood test here and to the sensitive privacy issues connected with the AIDS-related results. According to the defendant, the interest of promoting public health is not particularly furthered by this testing and disclosure law. In her argument, the defendant points to the fact that section 5 — 5—3(h) does not require that results be disclosed to the person tested and does not prescribe or authorize any treatment for an infected person. She also notes that the statute is situated amongst criminal, not public health, provisions.

Additionally, the defendant compares the provisions of section 5— 5 — 3(h) to the testing requirements under the Illinois Sexually Transmissible Disease Control Act (Ill. Rev. Stat. 1989, ch. 111½, par. 7401 et seq.). That latter, public health statute allows involuntary AIDS testing only upon the presentation of a warrant showing exhaustion of less coercive means and real and present danger to public health. Ill. Rev. Stat. 1989, ch. 111½, par. 7406(c).

According to the defendant, the section 5 — 5—3(h) testing requirement is more akin to a police dragnet than to a scheme carefully tailored to reduce infringement of protected rights. She labels section 5 — 5—3(h) as a “standardless mandate.” She notes that the court ordering her blood test had no evidence that she might be infectious, except that she had been convicted of illegal possession of hypodermic-injection items. She notes that there was no showing made or attempted that she had used the hypodermic devices that she was convicted of possessing, that she customarily used such devices, or that she was addicted to drugs that are customarily injected. Further, she notes that even if we assume that she was infectious, there was no showing here either of a real and present danger to the public health or that there were no less coercive alternatives to the testing. See Ill. Rev. Stat. 1989, ch. HV-k, par. 7406(c).

Mandatory blood testing is a search and seizure that must comply with the United States Constitution’s fourth amendment standards for reasonableness. (Schmerber v. California (1966), 384 U.S. 757, 767-68, 16 L. Ed. 2d 908, 918, 86 S. Ct. 1826, 1834.) A search’s reasonableness is measured by balancing the nature and quality of the intrusion into the individual’s fourth amendment interests against the importance of the governmental interest alleged to justify the intrusion. O’Connor v. Ortega (1987), 480 U.S. 709, 719, 94 L. Ed. 2d 714, 724,107 S. Ct. 1492, 1498-99.

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People v. C.S., 583 N.E.2d 726, 222 Ill. App. 3d 348, 164 Ill. Dec. 810, 1991 Ill. App. LEXIS 2201 (Ill. Ct. App. 1991).

583 N.E.2d 726 (People v. C.S.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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