23A-35B-3.1. Victim request for HIV test of defendant or juvenile--Hearing--Order--Time for testing A victim, or a victim or witness assistant, may request in writing to the state's attorney that a defendant or juvenile against whom an information, indictment, or petition is presented for a crime in which, by force or threat of force, the defendant or juvenile compelled the victim to engage in sexual activity be tested for HIV by the Department of Health, and that a search warrant be obtained for the purpose of taking a blood sample from the defendant or juvenile to test for HIV. A request under this section shall state that the victim believes there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim, and shall state the factual basis for believing the exchange occurred.
Upon motion, a court of competent jurisdiction shall hold a hearing at which both the victim and defendant or juvenile may be present. If the court finds probable cause that the defendant or juvenile committed the offense and that there was an exchange of blood, semen, or other bodily fluids from the defendant or juvenile to the victim, the court shall order a search warrant for the purpose of taking a blood sample from the defendant or juvenile to test for HIV in accordance with § 23A-35B-4. A blood sample shall be taken within forty-eight hours of the date of the request under this section or, if later, the date on which the information, indictment, or petition was:
(1) Presented or filed, and the defendant or juvenile was taken into custody; or
(2) Served on the defendant or juvenile.
The court shall include in the order a requirement for any follow-up test for HIV that is medically appropriate based on the results of the initial test. Payment for any test for HIV under this section shall be in accordance with § 23A-35B-4. The victim, the victim or witness assistant, and the defendant shall be notified in accordance with § 23A-35B-4 of the results of any test for HIV under this section.
Source: SL 2019, ch 117, § 1.
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