ORS 135.139
Notice of availability of testing for HIV and other communicable diseases to person charged with crime

  • when court may order test
  • victim’s rights
  • disclosure of test results
  • penalties

(1)

When a person has been charged with a crime in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved, the district attorney, upon the request of the victim or the parent or guardian of a minor or incapacitated victim, shall seek the consent of the person charged to submit to a test for HIV and any other communicable disease. In the absence of such consent or failure to submit to the test, the district attorney may petition the court for an order requiring the person charged to submit to a test for HIV and any other communicable disease.

(2)

Intentionally left blank —Ed.

(a)

At the time of an appearance before a circuit court judge on a criminal charge, the judge shall inform every person arrested and charged with a crime, in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved, of the availability of testing for HIV and other communicable diseases and shall cause the alleged victim of such a crime, if any, or a parent or guardian of the victim, if any, to be notified that testing for HIV and other communicable diseases is available. The judge shall inform the person arrested and charged and the victim, or parent or guardian of the victim, of the availability of counseling under the circumstances described in subsection (7) of this section.

(b)

Notwithstanding the provisions of ORS 433.045 (Notice of HIV test required), if the district attorney files a petition under subsection (1) of this section, the court shall order the person charged to submit to testing if the court determines there is probable cause to believe that:

(A)

The person charged committed the crime; and

(B)

The victim has received a substantial exposure, as defined by rule of the Oregon Health Authority.

(3)

Notwithstanding the provisions of ORS 433.045 (Notice of HIV test required), upon conviction of a person for any crime in which the court determines from the facts that the transmission of body fluids from one person to another was involved and if the person has not been tested pursuant to subsection (2) of this section, the court shall seek the consent of the convicted person to submit to a test for HIV and other communicable diseases. In the absence of such consent or failure to submit to the test, the court shall order the convicted person to submit to the test if the victim of the crime, or a parent or guardian of the victim, requests the court to make such order.

(4)

When a test is ordered under subsection (2) or (3) of this section, the victim of the crime or a parent or guardian of the victim, shall designate an attending physician, a physician assistant licensed under ORS 677.505 (Application of provisions governing physician assistants to other health professions) to 677.525 (Fees) or a nurse practitioner licensed under ORS 678.375 (Nurse practitioners) to 678.390 (Authority of nurse practitioner and clinical nurse specialist to write prescriptions or dispense drugs) to receive such information on behalf of the victim.

(5)

If an HIV test results in a negative reaction, the court may order the person to submit to another HIV test six months after the first test was administered.

(6)

The result of any test ordered under this section is not a public record and shall be available only to:

(a)

The victim.

(b)

The parent or guardian of a minor or incapacitated victim.

(c)

The attending physician, physician assistant or nurse practitioner.

(d)

The Oregon Health Authority.

(e)

The person tested.

(7)

If an HIV test ordered under this section results in a positive reaction, the individual subject to the test shall receive post-test counseling as required by the Oregon Health Authority by rule. The results of HIV tests ordered under this section shall be reported to the authority. Counseling and referral for appropriate health care, testing and support services as directed by the Director of the Oregon Health Authority shall be provided to the victim or victims at the request of the victim or victims, or the parent or guardian of a minor or incapacitated victim.

(8)

The costs of testing and counseling provided under subsections (2), (3) and (7) of this section shall be paid through the compensation for crime victims program authorized by ORS 147.005 (Definitions) to 147.367 (Services to victims of acts of mass destruction) from amounts appropriated for such purposes. Restitution to the state for payment of the costs of any counseling provided under this section and for payment of the costs of any test ordered under this section shall be included by the court in any order requiring the convicted person to pay restitution.

(9)

When a court orders a convicted person to submit to a test under this section, the withdrawal of blood may be performed only by a physician licensed under ORS chapter 677, a physician assistant licensed under ORS 677.505 (Application of provisions governing physician assistants to other health professions) to 677.525 (Fees) or a nurse practitioner licensed under ORS 678.375 (Nurse practitioners) to 678.390 (Authority of nurse practitioner and clinical nurse specialist to write prescriptions or dispense drugs), or by another licensed health care provider acting within the provider’s licensed scope of practice or acting under the supervision of a physician licensed under ORS chapter 677, a physician assistant licensed under ORS 677.505 (Application of provisions governing physician assistants to other health professions) to 677.525 (Fees) or a nurse practitioner licensed under ORS 678.375 (Nurse practitioners) to 678.390 (Authority of nurse practitioner and clinical nurse specialist to write prescriptions or dispense drugs).

(10)

No person authorized by subsection (9) of this section to withdraw blood, no person assisting in the performance of the test nor any medical care facility where blood is withdrawn or tested that has been ordered by the court to withdraw or test blood shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices.

(11)

The results of tests or reports, or information therein, obtained under this section shall be confidential and shall not be divulged to any person not authorized by this section to receive the information. Any violation of this subsection is a Class C misdemeanor.

(12)

As used in this section:

(a)

“HIV test” means a test as defined in ORS 433.045 (Notice of HIV test required).

(b)

“Parent or guardian of the victim” means a custodial parent or legal guardian of a victim who is a minor or incapacitated person.

(c)

“Positive reaction” means a positive HIV test with a positive confirmatory test result as specified by the Oregon Health Authority.

(d)

“Transmission of body fluids” means the transfer of blood, semen, vaginal secretions or other body fluids identified by rule of the authority, from the perpetrator of a crime to the mucous membranes or potentially broken skin of the victim.

(e)

“Victim” means the person or persons to whom transmission of body fluids from the perpetrator of the crime occurred or was likely to have occurred in the course of the crime. [1989 c.568 §1; 1993 c.331 §1; 1999 c.967 §1; 2009 c.595 §92; 2014 c.45 §21]
Note: 135.139 (Notice of availability of testing for HIV and other communicable diseases to person charged with crime) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 135 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Source: Section 135.139 — Notice of availability of testing for HIV and other communicable diseases to person charged with crime; when court may order test; victim’s rights; disclosure of test results; penalties, https://www.­oregonlegislature.­gov/bills_laws/ors/ors135.­html.

135.010
Time and place
135.020
Scope of proceedings
135.030
When presence of defendant is required
135.035
Bringing in defendant not yet arrested or held to answer
135.037
Omnibus hearing
135.040
Right to counsel
135.045
Court appointment of counsel
135.050
Eligibility for court-appointed counsel
135.055
Compensation and expenses of appointed counsel
135.060
Informing defendant as to use of name in accusatory instrument
135.065
Name used in further proceedings
135.067
Effect of failure to provide true name of defendant on certain types of release
135.070
Informing defendant as to charge, right to counsel, use of statement and preliminary hearing
135.073
Statement by defendant when not advised of rights
135.075
Obtaining counsel
135.085
Subpoenaing witnesses
135.090
Examination of adverse witnesses
135.095
Right of defendant to make or waive making a statement
135.100
Statement of defendant
135.105
Use of statement before grand jury or on trial
135.115
Waiver of right to make statement
135.125
Examination of defendant’s witnesses
135.135
Exclusion of witnesses during examination of others
135.139
Notice of availability of testing for HIV and other communicable diseases to person charged with crime
135.145
Testimony of witnesses
135.155
Retention of record and statements by magistrate
135.165
Counsel for complainant
135.173
Oregon Evidence Code to apply in preliminary hearings
135.175
Discharge
135.185
Holding defendant to answer
135.195
Commitment
135.205
Indorsement in certain cases
135.215
Direction to sheriff
135.225
Forwarding of papers by magistrate
135.230
Definitions for ORS 135.230 to 135.290
135.233
Standing pretrial release orders
135.235
Release assistance officers
135.240
Releasable offenses
135.242
Security release for certain methamphetamine offenses
135.245
Release decision
135.246
Release conditions related to medical use of cannabis
135.247
Order prohibiting contact with victim of sex crime or domestic violence
135.250
General conditions of release agreement
135.253
Waiver of appearance at trial as release condition prohibited
135.255
Release agreement
135.260
Conditional release
135.265
Security release
135.270
Taking of security
135.275
Seizure of security by law enforcement agency
135.280
Arrest warrant
135.285
Modification of release decision
135.290
Punishment by contempt of court
135.295
Application of ORS 135.230 to 135.290 to certain traffic offenses
135.305
Types of answer
135.315
Types of pleading
135.325
Pleading a judgment
135.335
Pleading by defendant
135.345
Legal effect of plea of no contest
135.355
Presentation of plea
135.360
Special provisions relating to presentation of plea of guilty or no contest
135.365
Withdrawal of plea of guilty or no contest
135.370
Not guilty plea as denial of allegations of accusatory instrument
135.375
Pleading to offenses in other counties
135.380
Time of entering plea
135.385
Defendant to be advised by court
135.390
Determining voluntariness of plea
135.395
Determining accuracy of plea
135.405
Plea discussions and plea agreements
135.407
Plea agreement must contain defendant’s criminal history classification
135.415
Criteria to be considered in plea discussions and plea agreements
135.418
Prohibited plea agreement provisions
135.425
Responsibilities of defense counsel
135.432
Judge involvement in plea discussions
135.435
Discussion and agreement not admissible
135.445
Withdrawn plea or statement not admissible
135.455
Notice prior to trial of intention to rely on alibi evidence
135.465
Defect in accusatory instrument as affecting acquittal on merits
135.470
Motion to dismiss accusatory instrument on grounds of former jeopardy
135.510
Grounds for motion to set aside the indictment
135.520
Time of making motion
135.530
Effect of allowance of motion
135.540
Effect of resubmission of case
135.560
Order to set aside is no bar to future prosecution
135.610
Demurrer
135.630
Grounds of demurrer
135.640
When objections that are grounds for demurrer may be taken
135.650
Hearing of objections specified by demurrer
135.660
Judgment on demurrer
135.670
Allowance of demurrer
135.680
Procedure if resubmission of case not allowed
135.690
Resubmission of case
135.700
Disallowance of demurrer
135.703
Crimes subject to being compromised
135.705
Satisfaction of injured person
135.707
Discharge as bar to prosecution
135.709
Exclusiveness of procedure
135.711
Facts constituting crime or subcategory of crime required
135.713
Necessity of stating presumptions of law and matters judicially noticed
135.715
Effect of nonprejudicial defects in form of accusatory instrument
135.717
Time of crime
135.720
Place of crime in certain cases
135.725
Person injured or intended to be injured
135.727
Description of animal
135.730
Judgments
135.733
Defamation
135.735
Forgery
135.737
Perjury
135.740
Construction of words and phrases used
135.743
Fictitious or erroneous name
135.745
Delay in finding an indictment or filing an information
135.746
Time period within which trial must commence
135.748
Periods of time excluded from time limits
135.750
Where there is reason for delay
135.752
When trial not commenced within time limit
135.753
Effect of dismissal
135.755
Dismissal on motion of court or district attorney
135.757
Nolle prosequi
135.760
Notice requesting early trial on pending charge
135.763
Trial within 90 days of notice unless continuance granted
135.765
Dismissal of criminal proceeding not brought to trial within allowed time
135.767
Presence of prisoner at proceedings
135.770
Release of prisoner prohibited
135.773
District attorney to furnish certain documents
135.775
Agreement on Detainers
135.777
Definition for ORS 135.775
135.779
Enforcement of ORS 135.775 by public agencies
135.783
Effect of escape from custody in another state
135.785
Surrender of custody under ORS 135.775
135.787
Administrator of agreement
135.789
Notice of request for temporary custody
135.791
Request for final disposition of detainer from prisoner in another state
135.793
Procedure where untried instrument pending against prisoner in another state
135.805
Applicability
135.815
Disclosure to defendant
135.825
Other disclosure to defense
135.835
Disclosure to the state
135.845
Time of disclosure
135.855
Material and information not subject to discovery
135.857
Disclosure to victim
135.865
Effect of failure to comply with discovery requirements
135.873
Protective orders
135.881
Definitions for ORS 135.881 to 135.901
135.886
Requirements for diversion
135.891
Conditions of diversion agreement
135.893
Diversion conditions related to medical use of cannabis
135.896
Stay of criminal proceedings during period of agreement
135.898
Diversion agreement involving servicemember charged with domestic violence
135.901
Effect of compliance or noncompliance with agreement
135.925
Bad check diversion program
135.941
Early disposition programs
135.942
Purposes of program
135.943
Provisions of program
135.948
Availability to probationers
135.949
Other programs authorized
135.951
Authorization
135.953
How mediation may be used
135.955
Notifying victims and person charged with crime of mediation opportunities
135.957
Application of ORS 36.220 to 36.238 to mediation of criminal offenses
135.959
Authority to contract with dispute resolution programs
135.970
Information required when victim contacted by defense
135.973
Medication use by specialty court entrant
135.980
Rehabilitative programs directory
135.983
Court inquiry into defendant’s immigration status prohibited
135.985
Procedure when defendant is servicemember
135.990
Penalties
Green check means up to date. Up to date