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Chapter 228 Senate Bill No. 2202 (Senator Waine)

An Act to amend and reenact subsection 6 of section 23-07.5-02 of the North Dakota Century Code, relating to testing for the human immunodeficiency virus.

Source: ACLU; 1997-APR-10

Making North Dakota the first state to confine people suspected of having HIV, Governor Edward Schafer today signed a controversial measure that gives judges the power to detain a person without a hearing, and force that person to take a blood test for HIV.

The American Civil Liberties Union, which is considering a legal challenge, said the law serves no public health purpose, and is a serious violation of due process and the Fourth Amendment's guarantee against unreasonable searches and seizures.

"This law is way over the top," said Keith D. Elston, executive director of the ACLU of the Dakotas. "It completely violates people's most basic rights, while addressing none of the health concerns raised."

Under the measure, a person who believes that another individual has "significantly" exposed them to blood may secure a state court order confining that individual for up to five days, during which time a judge can rule on whether to order a HIV test.

The legislation specifies a "person" as a police officer, firefighter, emergency medical technician, health care worker or a patient -- in other words, practically anyone could be detained. The law also allows a person to be imprisoned even though no criminal charges have been filed.

"This measure gives courts the unprecedented power to jail doctors, patients and ordinary citizens for something as unsubstantiated as a hunch," said Matt Coles, director of the ACLU's National AIDS Project.

"Even people accused of the most heinous crimes are jailed only after some official has determined there is probable cause," Coles said. "Then they are entitled to a fair hearing within a couple of days. Surely, the possibility that someone has HIV is not a reason to disregard basic due process."

The law also provides no guidance to courts on how the results of the forced HIV test will be kept confidential, raising important questions about individual privacy, according to the ACLU.

The controversy stemmed from an incident in Minot, North Dakota where a police officer was exposed to blood during an emergency call. The officer later noticed a scratch on his forearm and requested the subject to be tested for HIV. The subject tested positive, but the officer has not.

"The only way that officers and others can know if they haven't been infected is to get tested themselves," Coles said. "While it may satisfy our curiosity to know the other person's HIV status, those results don't tell us anything about our own health."