SB-0381, As Passed House, March 17, 2016

SENATE BILL No. 381

June 4, 2015, Introduced by Senators YOUNG, HERTEL, GREGORY, WARREN and MARLEAU and referred to the Committee on Health Policy.

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending section 5129 (MCL 333.5129), as amended by 2014 PA 321.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 5129. (1) An individual arrested and charged with

violating section 448, 449, 449a, 450, 452, or 455 of the Michigan

penal code, 1931 PA 328, MCL 750.448, 750.449, 750.449a, 750.450,

750.452, and 750.455, or a local ordinance prohibiting prostitution

or engaging or offering to engage the services of a prostitute may,

upon order of the court, be examined or tested to determine whether

the individual has ~~venereal disease,~~ sexually transmitted

infection, hepatitis B infection, hepatitis C infection, HIV

infection, or acquired immunodeficiency syndrome. Examination or

test results that indicate the presence of ~~venereal disease,~~

sexually transmitted infection, hepatitis B infection, hepatitis C

infection, HIV infection, or acquired immunodeficiency syndrome

must be reported to the defendant and, pursuant to sections 5114

and 5114a, to the department and the appropriate local health

department for partner notification.

(2) Except as otherwise provided in this section, if an

individual is arrested and charged with violating section 145a,

338, 338a, 338b, 448, 449, 449a, 450, 452, 455, 520b, 520c, 520d,

520e, or 520g of the Michigan penal code, 1931 PA 328, MCL

750.145a, 750.338, 750.338a, 750.338b, 750.448, 750.449, 750.449a,

750.450, 750.452, 750.455, 750.520b, 750.520c, 750.520d, 750.520e,

and 750.520g, or section 7404 by intravenously using a controlled

substance, or a local ordinance prohibiting prostitution,

solicitation, gross indecency, or the intravenous use of a

controlled substance, the judge or magistrate responsible for

setting the individual's conditions of release pending trial shall

distribute to the individual the information on ~~venereal disease~~

sexually transmitted infection and HIV infection required to be

distributed by county clerks under section 5119(1) and shall

recommend that the individual obtain additional information and

counseling at a local health department testing and counseling

center regarding ~~venereal disease,~~ sexually transmitted infection,

hepatitis B infection, hepatitis C infection, HIV infection, and

acquired immunodeficiency syndrome. Counseling under this

subsection is voluntary on the part of the individual.

(3) If a defendant is bound over to circuit court or

~~recorder's court~~ for ~~a violation of~~ violating section 145a, 338,

338a, 338b, 450, 452, 455, 520b, 520c, 520d, 520e, or 520g of the

Michigan penal code, 1931 PA 328, MCL 750.145a, 750.338, 750.338a,

750.338b, 750.450, 750.452, 750.455, 750.520b, 750.520c, 750.520d,

750.520e, and 750.520g, and the district court determines there is

reason to believe the violation involved sexual penetration or

exposure to a body fluid of the defendant, the district court shall

order the defendant to be examined or tested for ~~venereal disease,~~

sexually transmitted infection, hepatitis B infection, and

hepatitis C infection and for the presence of HIV or an antibody to

HIV. The circuit court shall order the examination or testing if

the defendant is brought before it by way of indictment for any of

the violations described in this subsection. If a defendant is

bound over to or brought before the circuit court for ~~a violation~~

of violating section 520b, 520c, 520d, 520e, or 520g of the

Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, 750.520d,

750.520e, and 750.520g, the court shall, upon the victim's request,

order the examination or testing to be done not later than 48 hours

after the date that the information or indictment is presented and

the defendant is in custody or has been served with the information

or indictment. The court shall include in its order for expedited

examination or testing at the victim's request under this

subsection a provision that requires follow-up examination or

testing that is considered medically appropriate based on the

results of the initial examination or testing. Except as provided

in subsection (5), (6), or (7), or as otherwise provided by law,

the examinations and tests must be confidentially administered by a

licensed physician, the department, or a local health department.

The court also shall order the defendant to receive counseling

regarding ~~venereal disease,~~ sexually transmitted infection,

hepatitis B infection, hepatitis C infection, HIV infection, and

acquired immunodeficiency syndrome, including, at a minimum,

information regarding treatment, transmission, and protective

measures.

(4) Except as otherwise provided in this section, upon

conviction of a defendant or the issuance by the probate court of

an order adjudicating a child to be within the provisions of

section 2(a)(1) of chapter XIIA of the probate code of 1939, 1939

PA 288, MCL 712A.2, for violating section 145a, 338, 338a, 338b,

448, 449, 449a, 450, 452, 455, 520b, 520c, 520d, 520e, or 520g of

the Michigan penal code, 1931 PA 328, MCL 750.145a, 750.338,

750.338a, 750.338b, 750.448, 750.449, 750.449a, 750.450, 750.452,

750.455, 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g, or

section 7404 by intravenously using a controlled substance, or a

local ordinance prohibiting prostitution, solicitation, gross

indecency, or the intravenous use of a controlled substance, the

court that has jurisdiction of the criminal prosecution or juvenile

hearing shall order the defendant or child to be examined or tested

for ~~venereal disease,~~ sexually transmitted infection, hepatitis B

infection, and hepatitis C infection and for the presence of HIV or

an antibody to HIV. Except as provided in subsection (5), (6), or

(7), or as otherwise provided by law, the examinations and tests

must be confidentially administered by a licensed physician, the

department, or a local health department. The court also shall

order the defendant or child to receive counseling regarding

~~venereal disease,~~ sexually transmitted infection, hepatitis B

infection, hepatitis C infection, HIV infection, and acquired

immunodeficiency syndrome, including, at a minimum, information

regarding treatment, transmission, and protective measures.

(5) If the victim or individual with whom the defendant or

child found to be within the provisions of section 2(a)(1) of

chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2,

engaged in sexual penetration or sexual contact or who was exposed

to a body fluid during the course of the crime consents, the court

or probate court shall provide the person or agency conducting the

examinations or administering the tests under subsection (3) or (4)

with the name, address, and telephone number of the victim or

individual with whom the defendant or child engaged in sexual

penetration or sexual contact or who was exposed to a body fluid of

the defendant during the course of the crime. If the victim or

individual with whom the defendant or child engaged in sexual

penetration during the course of the crime is a minor or otherwise

incapacitated, the victim's or individual's parent, guardian, or

person in loco parentis may give consent for purposes of this

subsection. After the defendant or child is examined or tested as

to the presence of ~~venereal disease, of~~ sexually transmitted

infection, hepatitis B infection, of hepatitis C infection, or of

HIV or an antibody to HIV, or if the defendant or child receives

appropriate follow-up testing for the presence of HIV, the person

or agency conducting the examinations or administering the tests

shall immediately provide the examination or test results to the

victim or individual with whom the defendant or child found to be

within the provisions of section 2(a)(1) of chapter XIIA of the

probate code of 1939, 1939 PA 288, MCL 712A.2, engaged in sexual

penetration or sexual contact or who was exposed to a body fluid

during the course of the crime and shall refer the victim or other

individual for appropriate counseling.

(6) The examination or test results and any other medical

information obtained from the defendant or child found to be within

the provisions of section 2(a)(1) of chapter XIIA of the probate

code of 1939, 1939 PA 288, MCL 712A.2, by the person or agency

conducting the examinations or administering the tests under

subsection (3) or (4) must be transmitted to the court or probate

court and, after the defendant or child is sentenced or an order of

disposition is entered, made part of the court record. The

examination or test results and any other medical information

described in this subsection are confidential and may be disclosed

only to 1 or more of the following:

(a) The defendant or child.

(b) The local health department.

(d) The victim or other individual required to be informed of

the results under this subsection or subsection (5) or, if the

victim or other individual is a minor or otherwise incapacitated,

to the victim's or other individual's parent, guardian, or person

in loco parentis.

(e) Upon written authorization of the defendant or child found

to be within the provisions of section 2(a)(1) of chapter XIIA of

the probate code of 1939, 1939 PA 288, MCL 712A.2, or the child's

parent, guardian, or person in loco parentis.

(f) As otherwise provided by law.

(7) If the defendant is placed in the custody of the

department of corrections, the court shall transmit a copy of the

defendant's examination and test results and other medical

information to the department of corrections. If the child found to

be within the provisions of section 2(a)(1) of chapter XIIA of the

probate code of 1939, 1939 PA 288, MCL 712A.2, is placed by the

probate court in the custody of an individual related to the child

or a public or private agency, institution, or facility, the

probate court shall transmit a copy of the child's examination or

test results to the individual related to the child or the director

of the agency, institution, or facility. A person or agency that

discloses information in compliance with this subsection or

subsection (6) is not civilly or criminally liable for making the

disclosure. A person or agency that receives test results or other

medical information pertaining to HIV infection or acquired

immunodeficiency syndrome under this subsection or subsection (6)

is subject to section 5131 and shall not disclose the test results

or other medical information except as specifically permitted under

that section.

(8) If an individual receives counseling or is examined or

tested under this section and is found to be infected with a

~~venereal disease,~~ sexually transmitted infection, hepatitis B, or

hepatitis C or to be HIV infected, the individual must be referred

by the agency providing the counseling or testing for appropriate

medical care. The department, the local health department, or any

other agency providing counseling or testing under this section is

not financially responsible for medical care received by an

individual as a result of a referral made under this subsection.

(9) The requirements for the distribution of information

concerning ~~venereal disease,~~ sexually transmitted infection,

counseling concerning ~~venereal disease,~~ sexually transmitted

infection, and examining or testing for ~~venereal disease~~ sexually

transmitted infection under subsections (2), (3), and (4) do not

apply to an individual charged with or convicted of violating

section 7404 by intravenously using a controlled substance or

violating a local ordinance prohibiting the intravenous use of a

controlled substance.

(10) The court may, upon conviction or the issuance by the

probate court of an order adjudicating a child to be within the

provisions of section 2(a)(1) of chapter XIIA of the probate code

of 1939, 1939 PA 288, MCL 712A.2, order an individual who is

examined or tested under this section to pay the actual and

reasonable costs of that examination or test incurred by the

licensed physician or local health department that administered the

examination or test.

(11) An individual who is ordered to pay the costs of an

examination or test under subsection (10) shall pay those costs

within 30 days after the order is issued or as otherwise provided

by the court. The amount ordered to be paid under subsection (10)

must be paid to the clerk of the court, who shall transmit the

appropriate amount to the physician or local health department

named in the order. If an individual is ordered to pay a

combination of fines, costs, restitution, assessments, probation or

parole supervision fees, or other payments upon conviction in

addition to the costs ordered under subsection (10), the payments

must be allocated as provided under the probate code of 1939, 1939

PA 288, MCL 710.21 to 712B.41, the code of criminal procedure, 1927

PA 175, MCL 760.1 to 777.69, and the William Van Regenmorter crime

victim's rights act, 1985 PA 87, MCL 780.751 to 780.834. An

individual who fails to pay the costs within the 30-day period or

as otherwise ordered by the court is guilty of a misdemeanor

punishable by imprisonment for not more than 90 days or a fine of

not more than $100.00, or both.

(12) As used in this section:

(a) "Sexual contact" means that term as defined in section

520a of the Michigan penal code, 1931 PA 328, MCL 750.520a.

(b) "Sexual penetration" means that term as defined in section

520a of the Michigan penal code, 1931 PA 328, MCL 750.520a.

term is defined in section 520a of the Michigan penal code, 1931 PA

328, MCL 750.520a.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 98th Legislature are

enacted into law:

(a) Senate Bill No. 374.

(b) Senate Bill No. 375.

(d) Senate Bill No. 377.

(e) Senate Bill No. 378.

(f) Senate Bill No. 379.

(g) Senate Bill No. 380.