A. A test designed to identify any sexually transmitted infection may be performed 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 the 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, the victim of the alleged criminal offense described in Subsection A of this section may petition the court, through the prosecuting office or personally, to order that a test be performed on the alleged offender; provided that the same test is first performed on the victim of the alleged criminal offense. The test may be performed on the alleged offender regardless of the result of the test 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 petition the court to order that a test be performed on the alleged offender.
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 victim petitions the court for the order. The petition and all proceedings in connection therewith shall be under seal. The court shall issue an order and the test shall be administered to the alleged offender within ten days after the petition is filed by the victim of the alleged criminal offense or the victim's parent or legal guardian.
D. Except for disclosures made pursuant to Section 24-1-7 NMSA 1978, the results of the test shall be disclosed 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.
E. 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.
F. The provisions of this section shall not affect the rights and remedies available to the victim of the alleged criminal offense and the alleged offender in any civil action.
G. The administration of a test to an alleged offender pursuant to the provisions of this section shall not preclude the subsequent administration of another test pursuant to the provisions of Section 24-1-9.1 NMSA 1978.
History: 1978 Comp., § 24-1-9.2, enacted by Laws 1996, ch. 80, § 1; 2017, ch. 87, § 11.
Cross references. — For informed consent for testing of persons charged with committing certain criminal offenses, see 24-2B-5.2 NMSA 1978.
The 2017 amendment, effective June, 16, 2017, provided an exception to the disclosure provision; in the catchline, deleted "diseases" and added "infections"; in Subsection A, in the introductory clause, after "transmitted", deleted "disease" and added "infection"; and in Subsection C, after "alleged criminal offense", deleted "his" and added "or the victim's", and after "parent or", added "legal"; and in Subsection D, added "Except for disclosures made pursuant to Section 24-1-7 NMSA 1978".
Law reviews. — For note, "Tort Law Turning Blood Into Whine: 'Fear of AIDS' as a Cognizable Cause of Action in New Mexico Madrid v. Lincoln County Medical Center," see 28 N.M.L. Rev. 165 (1998).
Structure New Mexico Statutes
Chapter 24 - Health and Safety
Section 24-1-3 - Powers and authority of department.
Section 24-1-4.1 - Certified nurse-midwives; prescriptive, distributing and administering authority.
Section 24-1-5 - Licensure of health facilities; hearings; appeals.
Section 24-1-5.2 - Health facilities; intermediate sanctions; civil penalty.
Section 24-1-5.4 - Plan of growth; requirements; reporting.
Section 24-1-5.6 - Northern New Mexico substance abuse treatment pilot project.
Section 24-1-5.7 - Methadone clinics; regulation by the human services department.
Section 24-1-5.8 - Legislative findings; licensing requirements for certain hospitals.
Section 24-1-5.9 - Reporting requirements.
Section 24-1-5.10 - Federal participation required; exception.
Section 24-1-6 - Tests required for newborn infants.
Section 24-1-6.1 - Newborn hearing testing required; department of health.
Section 24-1-7 - Sexually transmitted infections; reports of cases.
Section 24-1-9.3 - Sexually transmitted infections; mandatory counseling.
Section 24-1-9.4 - Sexually transmitted infections; confidentiality.
Section 24-1-9.6 - Sexually transmitted infections; disclosure.
Section 24-1-10 - Pregnancy; serological test for syphilis.
Section 24-1-11 - Reporting of blood tests.
Section 24-1-12 - Health certificates; filing.
Section 24-1-13 - Pregnancy; capacity to consent to examination and diagnosis.
Section 24-1-13.2 - Shaken baby syndrome prevention.
Section 24-1-14 - [Sterilization;] special qualifications prohibited.
Section 24-1-15 - Isolation; quarantine; protocol.
Section 24-1-15.1 - Protocol for management of active tuberculosis.
Section 24-1-15.2 - Conditions of public health importance; reporting.
Section 24-1-15.3 - Conditions of public health importance; testing; screening.
Section 24-1-16 - Inspection definitions.
Section 24-1-17 - Inspectorial search by consent.
Section 24-1-18 - Inspection searches.
Section 24-1-19 - Emergency inspectorial searches.
Section 24-1-20 - Records confidential.
Section 24-1-22 - Scientific laboratory division; testing methods; certification.
Section 24-1-25 - Holly Gonzales experimental treatment fund created.
Section 24-1-28 - Behavioral health planning council created; powers and duties; membership.
Section 24-1-29 - Commission created; members; duties.
Section 24-1-30 - Hand washing facilities; requirement.
Section 24-1-31 - Save our children's sight fund created.
Section 24-1-32 - Notice of the need for further vision evaluation and availability of funds.
Section 24-1-33 - Communication regarding reconstructive breast surgery.
Section 24-1-35 - Assisted living facilities contracts; limit on charges after resident death.
Section 24-1-36 - Statewide community-based adult fall risk awareness and prevention program.
Section 24-1-37 - Lay caregiver; aftercare; designation.
Section 24-1-38 - Hospitals; requirement to offer influenza and pneumococcal immunizations.
Section 24-1-39 - Mammograms; health facilities; breast density disclosure.
Section 24-1-42 - Eligibility for state or local health benefits.