A. A test designed to identify the human immunodeficiency virus or its antigen or antibody may be performed, without the offender's consent, on an offender convicted pursuant to state law of any criminal offense:

(1) involving contact between the penis and vulva;

(2) involving contact between the penis and anus;

(3) involving contact between the mouth and penis;

(4) involving contact between the mouth and vulva;

(5) involving contact between the mouth and anus; or

(6) when the court determines from the facts of the case that there was a transmission or likelihood of transmission of blood, semen or vaginal secretions from the offender to the victim.

B. If consent to perform a test on an offender cannot be obtained pursuant to the provisions of Section 24-2B-2 or 24-2B-3 NMSA 1978, the district attorney or other prosecutorial authority shall, upon the request of the victim of a criminal offense described in Subsection A of this section, petition the court to order that a test be performed on the offender not later than forty-eight hours from the date of the court order. If the victim of the criminal offense is a minor or incompetent, the parent or legal guardian of the victim may request the district attorney or other prosecutorial authority to petition the court to order that a test be performed on the offender. The petition and all proceedings in connection with the petition shall be under seal. The results of the test shall be disclosed as soon as practicable and only to the offender and to the victim or the victim's parent or legal guardian. If the offender has a positive test result, both the offender and victim shall be provided with counseling, as described in Section 24-2B-4 NMSA 1978.

C. If the offender is sentenced to imprisonment in a state corrections facility, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results.

D. If the offender is convicted of a misdemeanor or petty misdemeanor offense or is convicted of a felony offense that is suspended or deferred, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results.

E. If the offender is a minor adjudicated as a delinquent child pursuant to the provisions of the Children's Code [Chapter 32A NMSA 1978] and the court transfers legal custody of the minor to the children, youth and families department, the court's order shall direct the children, youth and families department to be responsible for the administration of and payment for the test and the lawful distribution of the test results.

F. If the offender is a minor adjudicated as a delinquent child pursuant to the provisions of the Children's Code and the court does not transfer legal custody of the minor to the children, youth and families department, the court's order shall direct the department of health to be responsible for the administration of and payment for the test and the lawful distribution of the test results.

History: 1978 Comp., § 24-2B-5.1, enacted by Laws 1993, ch. 107, § 3; 2010, ch. 26, § 1.

The 2010 amendment, effective May 19, 2010, in Subsection A, after "may be performed, without", deleted "his" and added "the offender's"; in Subsection B, in the first sentence, changed "When" to "If"; after "Section 24-2B-2 or 24-2B-3 NMSA 1978,", added "the district attorney or other prosecutorial authority shall, upon the request of"; after "Subsection A of this section", deleted "may"; and after "performed on the offender", added "not later than forty-eight hours from the date of the court order"; deleted the former second sentence, which provided that the petition and all proceedings in connection therewith shall be under seal; in the second sentence, added "If" and after "guardian of the victim may", added "request the district attorney or other prosecutorial authority to"; deleted the former third sentence, which provided that the court shall order and the test shall be administered to the offender within ten days after the petition is filed by the victim, parent or guardian; added the third sentence; in the fourth sentence, after "test shall be disclosed", added "as soon as practicable and"; and in the fifth sentence, changed "When" to "If"; and in Subsections C, D, E and F, at the beginning of each sentence, changed "When" to "If".