A. A test designed to identify the human immunodeficiency virus or its antigen or antibody may be performed, without the person's consent, on a person upon the filing of a complaint, information or an indictment alleging that the person committed a state 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; or

(5) involving contact between the mouth and anus.

B. If consent to perform a test on an alleged 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 the alleged criminal offense described in Subsection A of this section, petition the court to order that a test be performed on the alleged offender not later than forty-eight hours from the date of the court order; provided that the same test is first performed on the victim of the alleged criminal offense. If the victim of the alleged criminal offense is a minor or incompetent, the parent or legal guardian of the victim of the alleged criminal offense may request the district attorney or other prosecutorial authority to petition the court to order that a test be performed on the alleged offender. The test may be performed on the alleged offender regardless of the result of the test performed on the victim of the alleged offense.

C. The court may issue an order based on a finding of good cause after a hearing at which both the victim of the alleged criminal offense and the alleged offender have the right to be present. During the hearing, only affidavits, counter affidavits and medical reports regarding the facts that support or rebut the issuance of an order shall be admissible. The hearing shall be conducted within seventy-two hours after the district attorney or other prosecutorial authority petitions the court for the order. The petition and all proceedings in connection therewith shall be under seal.

D. The results of the test shall be disclosed as soon as practicable and only to the alleged offender and to the victim of the alleged criminal offense or the victim's parent or legal guardian. When the victim of the alleged criminal offense or the alleged offender has a positive test result, both the alleged offender and the victim of the alleged criminal offense shall be provided with counseling, as described in Section 24-2B-4 NMSA 1978.

E. 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.

F. A prosecuting attorney may not use in a criminal proceeding arising out of the alleged criminal offense the fact that a test was administered to the alleged offender or the results of the test.

G. The provisions of this section shall not affect the rights and remedies available to the victim of the alleged criminal offense and alleged offender in any civil action.

H. The administration of a test to an alleged offender pursuant to the provisions of this section shall not preclude the subsequent administration of follow-up tests pursuant to the provisions of Section 24-2B-5.1 NMSA 1978.

History: 1978 Comp., § 24-2B-5.2, enacted by Laws 1996, ch. 80, § 8; 2010, ch. 26, § 2.

Cross references. — For testing for sexually transmitted diseases of persons charged with committing certain criminal offenses, see 24-1-9.2 NMSA 1978.

The 2010 amendment, effective May 19, 2010, in Subsection A, in the introductory sentence, after "performed, without", deleted "his" and added "the person's"; in Subsection B, in the first sentence, 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"; after "petition the court", deleted "through the prosecuting office or personally"; and after "performed on the alleged offender", added "not later than forty-eight hours from the date of the court order"; deleted the former second sentence, which provided that the test may be performed on the alleged offender regardless of the result of the test performed on the victim; in the second sentence, after "legal guardian of the victim of the alleged criminal offense may", added "request the district attorney or other prosecutorial authority to"; and added the third sentence; in Subsection C, in the third sentence, after "seventy-two hours after the", deleted "victim of the alleged criminal offense" and added "district attorney or other prosecutorial authority", deleted the former fifth sentence, which provided that the court shall issue the order and the test shall be administered within ten days after the petition is filed by the victim, parent or guardian; in Subsection D, in the first sentence, after "test shall be disclosed", added "as soon as practicable and"; and in Subsection H, after "subsequent administration of", deleted "another test" and added "follow-up tests".