New Jersey Section 2C:43-2.3 – Orders for certain serological testing required under certain circumstances

New Jersey’s Mandatory Testing Law for Certain Criminal Offenses – What You Need to Know

New Jersey has a law on the books requiring those convicted of certain criminal offenses to undergo mandatory serological testing. This testing is to determine whether the convicted individual has any communicable diseases like HIV or hepatitis. As a criminal defense lawyer practicing in New Jersey, I wanted to provide an overview of this law, who it applies to, the procedures involved, and some of the key issues surrounding mandatory serological testing.

What Does the Law Actually Say?

The specific law is New Jersey Statute 2C:43-2.3, under the state’s criminal code. It says that anyone convicted of, indicted for, or formally charged with certain enumerated offenses must undergo testing for HIV, hepatitis B, hepatitis C, and syphilis.

The list of applicable criminal offenses includes various degrees of sexual assault, criminal sexual contact, human trafficking, prostitution-related crimes, and any attempt to commit these offenses. So if your client is convicted of, or even just formally accused of, one of these crimes, they will be ordered by the court to undergo mandatory testing.

When Is the Testing Ordered and Conducted?

The court will issue the order requiring testing at the time of conviction or indictment. The specific tests will then be conducted by approved medical providers while the convicted individual is incarcerated.

If the person is not sentenced to a term of confinement, the court will order them to submit to testing after the disposition of the charges against them. This testing would occur at an approved medical facility in the person’s county of residence.

The law also allows a court to order immediate testing if they believe there was a potential exchange of bodily fluids during the criminal offense. This could occur before conviction or indictment.

What Are the Procedures and Protocols?

There are specific procedures outlined in the law regarding how the testing is conducted.

The medical provider must obtain both an oral and written informed consent from the convicted individual before collecting any biological samples. The law also specifies the confidentiality protections for the test results.

The biological samples and test results cannot be used for any other purpose besides what is outlined in the statute. There are also protocols about disclosing the results to the convicted individual, as well as to the victim of the crime if requested.

Counseling on the meaning of the test results must also be provided. Anyone who tests positive cannot be segregated from the general prison population solely based on that test result.

Key Issues and Controversies with Mandatory Testing

There are a range of perspectives on the ethics and legality of mandatory serological testing for certain criminal convictions. Some of the key questions include:

• Is it an unreasonable search and seizure under the 4th Amendment? There have been challenges arguing that forced blood draws or other testing amounts to an unconstitutional search.
• Does it violate principles of due process or cruel and unusual punishment? There are questions about requiring medical procedures as part of a criminal sentence.
• Is it medically justified based on transmission risks? The law assumes a high risk of transmission from specific crimes but some argue that risk is overstated.
• Does it undermine the privacy of medical information? Critics argue the state shouldn’t have access to this sensitive health data.
• Could it put the incarcerated at risk if positive results are improperly disclosed? Confidentiality of the results is crucial.
• Is it ethical to test someone simply based on an accusation rather than a conviction? The law allows for testing even just based on formal charges.

Our criminal justice system must balance the rights of the accused with public health concerns. Forced testing involves complex civil liberties issues. But the state also has a duty to protect victims and stop the spread of infectious diseases.

How a Defense Lawyer Can Advise Clients Facing Mandatory Testing

As a criminal defense attorney, I advise clients to be aware of the testing requirement if they are charged with one of the applicable offenses. I make sure they understand the procedures involved and their privacy rights regarding the results.

If a client opposes the testing, there may be grounds to challenge the constitutionality of forced testing under the specific circumstances of their case. There could also be ways to minimize disclosure of positive results to prevent any stigma or discrimination. I work diligently to protect my clients’ rights throughout this difficult process.

The Bottom Line

New Jersey’s mandatory serological testing law is controversial and involves a delicate balancing of rights and public policies. But it’s important for anyone charged with certain offenses in New Jersey to be aware of the testing requirement and procedures. Consulting with an experienced criminal defense lawyer is essential to navigate this complex issue while protecting your rights.