Colorado Revised Statutes Title 18 Criminal Code § 18-3-4155 Testing persons charged with certain sexual offenses for serious sexually transmitted infections--mandatory sentencing

(1) For purposes of this section, “sexual offense” is limited to a sexual offense that consists of sexual penetration, as defined in section 18-3-401(6) , involving sexual intercourse or anal intercourse, and “HIV” has the same meaning set forth in section 25-4-402(4) .

(2) The court shall order any adult or juvenile who is bound over for trial subsequent to a preliminary hearing or after having waived the right to a preliminary hearing on a charge of committing a sexual offense to submit to a diagnostic test for the human immunodeficiency virus (HIV) and HIV infection, said diagnostic test to be ordered in conjunction with the diagnostic test ordered pursuant to section 18-3-415 .  The results of the diagnostic test must be reported to the district attorney.  The district attorney shall keep the results of such diagnostic test strictly confidential, except for purposes of pleading and proving the mandatory sentencing provisions specified in subsection (5) of this section.

(3)(a) If the person tested pursuant to subsection (2) of this section tests positive for the human immunodeficiency virus (HIV) and HIV infection, the district attorney may contact the state department of public health and environment or any county, district, or municipal public health agency to determine whether the person had been notified prior to the date of the offense for which the person has been bound over for trial that he or she tested positive for the human immunodeficiency virus (HIV) and HIV infection.

(b) If the district attorney determines that the person tested pursuant to subsection (2) of this section had notice of his or her HIV infection prior to the date the offense was committed, the district attorney may file an indictment or information alleging such knowledge and seeking the mandatory sentencing provisions authorized in subsection (5) of this section.  Any such allegation must be kept confidential from the jury and under seal of court.

(c) The state department of public health and environment or any county, district, or municipal public health agency shall provide documentary evidence limited to whether the person tested pursuant to subsection (2) of this section had notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion.  The parties may stipulate that the person identified in the documents as having notice or discussion of his or her HIV infection is the person tested pursuant to subsection (2) of this section.  Such stipulation shall constitute conclusive proof that said person had notice of his or her HIV infection prior to committing the substantive offense, and the court shall sentence said person in accordance with subsection (5) of this section.

(d) If the parties do not stipulate as provided in paragraph (c) of this subsection (3), an officer or employee of the state department of public health and environment or of the county, district, or municipal public health agency who has had contact with the person tested pursuant to subsection (2) of this section regarding his or her HIV infection and can identify the person shall provide, for purposes of pretrial preparation and in court proceedings, oral and documentary evidence limited to whether the person had notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion.  If the state department or the county, district, or municipal public health agency no longer employs an officer or employee who has had contact with the person tested pursuant to subsection (2) of this section regarding the person's HIV infection, the state department or the county, district, or municipal public health agency shall provide:

(I) The names of and current addresses, if available, for each former officer or employee who had contact with the person tested pursuant to subsection (2) of this section regarding the person's HIV infection;

(II) Documentary evidence concerning whether the person tested pursuant to subsection (2) of this section was provided notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion;  and

(III) If none of said former officers or employees are available, any officer or employee who has knowledge regarding whether the person tested pursuant to subsection (2) of this section was provided notice of or had discussion concerning his or her HIV infection and the date of such notice or discussion.  The officer or employee shall provide such evidence for purposes of pretrial preparation and in court proceedings.

(4) Nothing in this section shall be interpreted as abridging the confidentiality requirements imposed on the state department of public health and environment and the county, district, and municipal public health agencies pursuant to part 4 of article 4 of title 25, C.R.S., with regard to any person or entity other than as specified in this section.

(5)(a) If a verdict of guilty is returned on the substantive offense with which the person tested pursuant to subsection (2) of this section is charged, the court shall conduct a separate sentencing hearing as soon as practicable to determine whether said person had notice of his or her HIV infection prior to the date the offense was committed, as alleged.  The judge who presided at trial or before whom the guilty plea was entered or a replacement for said judge in the event he or she dies, resigns, is incapacitated, or is otherwise disqualified as provided in section 16-6-201, C.R.S , shall conduct the hearing.  At the sentencing hearing, the district attorney has the burden of proving beyond a reasonable doubt that:

(I) The person had notice of his or her HIV infection prior to the date the offense was committed, as alleged;  and

(II) The infectious agent of the HIV infection was in fact transmitted.

(b) If the court determines that the person tested pursuant to subsection (2) of this section had notice of the HIV infection prior to the date the offense was committed and the infectious agent of the HIV infection was in fact transmitted, the judge shall sentence the person to a mandatory term of incarceration of at least the upper limit of the presumptive range for the level of offense committed, up to the remainder of the person's natural life, as provided in section 18-1.3-1004 .


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