Request By:
Honorable David C. Fowler
City Attorney
P.O. Box 847
Owensboro, Kentucky 42302
Opinion
Opinion By: Frederic J. Cowan, Attorney General; David A. Smith, Assistant Attorney General
Re: Compulsory AIDS Testing
With regard to our recent telephone conversation, you have asked whether an arrestee may be subjected to compulsory testing for the "Acquired Immune Deficiency Syndrome" virus (AIDS). The situation you have described is that following her apprehension, a runaway juvenile known for her sexual promiscuity claimed to have been raped by an unidentified male. Resisting police custody, the juvenile bit one of the officers hard enough to puncture the skin.
It is with this illustration in mind that you ask the following question:
May a law enforcement agency, through judicial process or otherwise, compel one who has been charged with a criminal offense to submit to a blood test to confirm or deny the presence of AIDS, where the criminal defendant is suspected of carrying the virus and engages in a course of conduct that potentially exposes a police officer to the virus?
For the reasons discussed below, our response to your question is a qualified "yes."
In Garr v. Commonwealth, Ky., 463 S.W.2d 109, 114-115 (1971), the Kentucky Supreme Court authorized the nonconsensual taking of pubic and cranial hairs from an arrestee pursuant to pre-trial order. Although the question presented in Garr was one of Fifth Amendment self-incrimination, the Court went on to hold that the judicially authorized extraction of such evidence would not violate principles of Fourteenth Amendment due process or Fourth Amendment rights of privacy.
The situation in Garr did not approach the extremes dealt with in Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), where drugs had been forcibly extracted from an arrestee by means of induced vomiting. In Rochin the United States Supreme Court disallowed such a procedure on Fourteenth Amendment due process grounds because it shocked the conscience of the Justices. Thus, Garr distinguished Rochin not on the basis of need for the evidence but because of the nature and extent of the intrusion upon the arrestee's person. "There is no suggestion of physical force or personal indignity as appeared in . . . Rochin." Garr, supra, 463 S.W.2d at 115.
Like Rochin, however, Garr involved the nonconsensual extraction of physical evidence for use in the criminal prosecution of the offense for which the defendant had been arrested. Accordingly, in the context of AIDS testing for purposes other than criminal prosecution, an arrestee's due process and Fourth Amendment privacy interests would be somewhat diminished. Unless the extracted bodily fluid is used for criminal prosecution, e.g., drug testing, there are no Fifth Amendment self-incrimination implications whatsoever. This is particularly so since physical evidence such as bodily fluids would be nontestimonial in nature.
Blood testing involves a slightly greater intrusion upon the arrestee's person than does the removal of hair samples as in Garr, and as such it requires commensurate scrutiny. Thus, in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) the United States Supreme Court authorized the compulsory blood testing of a person arrested for driving while intoxicated. In doing so, however, the Court reiterated its requirement of probable cause and its preference for the prior issuance of a warrant. The combination of reasonable suspicion, society's interest and exigent circumstances outweighed the privacy interest of the criminal defendant in Schmerber despite the absence of a warrant. See also Gall v. Commonwealth, Ky., 697 S.W.2d 97, 101 (1980), authorizing a court ordered blood test because it was nontestimonial in nature and involved a minimal intrusion upon the defendant's person. Compare: Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985), refusing to allow the surgical removal of a bullet from the defendant after applying the case-by-case analysis suggested in Schmerber. Weighing society's interest against that of the arrestee, the Court in Winston emphasized the abundance of incriminating evidence already available to the government in that particular case.
The illustration you have described presents a compelling interest in the personal safety of a government agent. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1967) (authorizing a warrantless "stop-and-frisk" search for weapons based on reasonable suspicion) ; Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (authorizing warrantless strip-searches and body cavity inspections of prisoners for contraband including weapons) .
Recently, the United States Supreme Court decided two cases which are analogous to the situation under discussion. Skinner v. Railway Labor Executives' Association, U.S. , 44 CrL 3178 (March 21, 1989); National Treasury Employees Union v. Von Raab, U.S. , 44 CrL 3192 (March 21, 1989).
In Skinner, the Court authorized the warrantless blood, urine and breath testing of railroad employees who either have been involved in train accidents or have violated safety regulations. Due to the public's compelling interest in train safety, the Court found there is no need for a particularized suspicion of drug usage in either situation.
Von Raab gave partial approval to the warrantless drug testing of the Treasury Department's Customs employees. Those who are involved in front-line drug interdiction or firearms use may be arbitrarily tested because of safety considerations akin to those discussed in Skinner. The Court stopped short of allowing such testing upon employees who merely handle classified information, however.
The implication of both cases is that where personal safety is at great risk, as in Terry v. Ohio, supra and Bell v. Wolfish, supra, the government's interest in preventing injury outweighs the privacy interest of the individual. Because there does not appear to be a reported Kentucky or United States Supreme Court decision controlling your situation, however, the more prudent approach would be to obtain prior judicial approval for purposes of the testing as well as the disclosure of results.
In view of the foregoing, we conclude that it would be constitutionally permissible for a court to order a compulsory AIDS test if there is probable cause to believe the arrestee suffers that disease and if it further appears that a government agent is, has been, or will be at risk. Such a government agent would be entitled to learn of the test results in accordance with KRS 214.420(e), which carves an exception from the general confidentiality requirement in the event of an emergency. We emphasize that both the testing and the disclosure of test results should be done by court order.