delivered the opinion of the court:
Thе defendant, C.S., appeals from the trial court’s orders: (1) that she undergo a blood test for human immunodeficiency virus (HIV) and (2) disclosing the positive test results. We affirm the court’s order, as modified.
The defendant pleaded guilty to unauthorized possession of a hypodermic needle or syringe (Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50) and was sentenced to 270 days in the county jail. Thereafter, pursuant to section 5 — 5—3(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h)), the court ordered the defendant to submit to HIV testing. Section 5 — 5—3(h)
The defendant's HIV test results were positive, and the State moved for disclosure of the results. The court ordered the defendаnt to report for treatment information from public health officials. It also ordered that the defendant’s test results be disclosed to all attorneys in the criminal division of the Winnebago County State’s Attorney’s office, to two persons at the Winnebago County jail, and to the Rockford city police supervisor of detectives.
In its order, the court found it necessary and in the public interest that law enforcement personnel be protected against physical harm in future contacts with the defendant and that both law enforcement personnel and lawyers in the State’s Attorney’s office be informed of facts sufficient to initiate or institute proper criminal charges in future contacts with the defendant. The court also found it was in the dеfendant’s privacy interest that police disclosure be made only to one specific supervisor.
The defendant appealed and was granted stay of the disclosure order, pending appeal. On appeal, the defendant challenges the constitutionality of the section 5 — 5—3(h) requirement that she be tested for HIV or any other causative agеnt of acquired immunodeficiency syndrome (AIDS). She also argues that, even if she was constitutionally tested for HIV, the court’s disclosure order was an abuse of discretion. We first address the constitutionality of section 5 — 5—3(h).
Section 5 — 5—3(h) provides as follows:
“(h) Whenever a defendant is convicted of an offense under Section 1 or 2 of ‘An Act to regulate the possession, delivery, sale or exchange of hypоdermic syringes, hypodermic needles, and similar instruments,’ *** the defendant shall undergo medical testing to determine whether the defendant has been exposed to *** (HIV) or any other identified causative agent of *** (AIDS). Except as otherwise provided by law, the results of such test shall be kept strictly confidential by all medical personnel involved in the testing and must be personally delivered in a sealed envelope to the judge of the court in which the conviction was entered for the judge’s inspection in camera. Acting in accordance with the best interests of the public, the judge shall have the discretion to determine to whom, if anyone, the results of the testing may be revealed.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h).
The “section 1” offense to which sectiоn 5 — 5—3(h) refers is the offense of which the defendant was convicted. It is defined as follows:
“§1. No person, not being a physician, dentist, chiropodist or veterinarian licensed under the laws of this State or of the state where he resides, or a registered professional nurse, or a registered embalmer, manufacturer or dealer in embalming supplies, wholesale druggist, manufacturing pharmacist, registered pharmacist, manufacturer of surgical instruments, industrial user, official of any government having possession of the articles hereinafter mentioned by reason of his official duties, nurse or a medical laboratory technician acting under the direction of a physician or dentist, employee of an incorporated hospital aсting under the direction of its superintendent or officer in immediate charge, or a carrier or messenger engaged in the transportation of such articles, or the holder of a [statutorily described prescription], or a farmer engaged in the use of such instruments on livestock, or a person engaged in chemical, clinical, pharmaceutical or other scientific research, shall have in his possession a hypodermic syringe, hypodermic needle, or any instrument adapted for the use of controlled substances or cannabis by subcutaneous injection.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50.
In her first argument, the defendant refers to the intrusive nature of the mandatory blood test here and to the sensitive privacy issues cоnnected with the AIDS-related results. According to the defendant,
Additionally, the defendant compares the provisions of section 5— 5 — 3(h) to the testing requirements under the Illinois Sexually Transmissible Disease Control Act (Ill. Rev. Stat. 1989, ch. 111½, par. 7401 et seq.). That latter, public health statute allows involuntary AIDS testing only upon the presentation of a warrant showing exhaustion of lеss coercive means and real and present danger to public health. Ill. Rev. Stat. 1989, ch. 111½, par. 7406(c).
According to the defendant, the section 5 — 5—3(h) testing requirement is more akin to a police dragnet than to a scheme carefully tailored to reduce infringement of protected rights. She labels section 5 — 5—3(h) as a “standardless mandate.” She notes that the court ordering her blood test had no evidence that she might be infectious, except that she had been convicted of illegal possession of hypodermic-injection items. She notes that there was no showing made or attempted that she had used the hypodermic devices that she was convicted of possessing, that she customarily used such devices, or that she was аddicted to drugs that are customarily injected. Further, she notes that even if we assume that she was infectious, there was no showing here either of a real and present danger to the public health or that there were no less coercive alternatives to the testing. See Ill. Rev. Stat. 1989, ch. HV-k, par. 7406(c).
Mandatory blood testing is a search and seizure that must comply with the United States Constitution’s fourth amendment standards for reasonableness. (Schmerber v. California (1966),
In its argument to support the mandatory testing here, the State notes the extent and significance of AIDS-related viruses today. It also notes generally understood information that those viruses are most commonly spread through sexual contact but that the exchange of blood products, most commonly by needle-sharing drug users, is another common means of transmission.
Citing Flanders and Flanders’ Aids Library in a Book (1991), the State observes that intravenous drug users are considered less likely than other risk groups to engage in safe sexual practices and that there exists concern that the disease they may contract may spread to the general population either sexually or through contaminated blood transfusions. According to the State, it cannot be denied that the people of Illinois have a vital interest in controlling the spread of AIDS and that section 5 — 5—3(h) is a well-reasoned response to the accelerating epidemic of HIV infection among intravenous drug users.
The defendant acknowledges that the State has an interest in promoting public health. However, she challenges making a connection between possessing drug-injection equipment and being in a high-risk group for AIDS contraction; in that vein, she challenges the related view that it would be a reasonable exercise of the State’s police powers to AIDS test a person who had been shown to have possessed drug-injection equipment. We agree with the State’s general position that the testing of individuals belonging to a high-risk group for contraction оf AIDS viruses in the midst of the AIDS epidemic, is a reasonable exercise of the State’s police powers. (Cf. Skinner v. Ry. Labor Executives’ Association (1989),
Further, given the particularity with which the defendant’s “section 1” offense is defined, we find that mandating a test for persons convicted of the offense is equivalent to mandating a test for likely illegal intravenous drug users. The “section 1” prohibition on possession of devices adapted for drug injection has been carefully drafted to apply only to persons without legally recognized reason to possess those items closely connected with illegal intravenous drug use. We find that the connection is sufficiently direct to negate a constitutional need for further evidence of illegal intravenous drug use to justify testing.
In finding the test mandate of section 5 — 5—3(h) to be constitutional, we аcknowledge that blood testing to secure personal information about AIDS exposure is extremely sensitive. (See Glover v. Eastern Nebraska Community Office of Retardation (D. Neb. 1988),
We go on, then, to examine the court’s specific order of test-result disclosure in this case. Under section 5 — 5—3(h), the court has the discretion to determine, in accordance with the best interests of the public, to whom, if anyone, the HIV test results should be revealed. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h).
As an initial position, the defendant hаs stipulated to the propriety of the court’s order that officials at the Winnebago County jail be informed of her test results. We endorse the defendant’s agreement with that portion of the court’s disclosure order.
In their role as day-to-day physical caretaker for the defendant, the jail personnel could well face practical decisions that they can appropriately address only with knowledge of her infected status. In that regard, for example, their knowledge could be necessary to dissuade them, in the defendant’s interest, from exposing her unnecessarily to persons infected with a cold or other contagious condition. Upon considering related information, they might determine that such exposure was a more significant risk for her than for a prisoner not known to be infected. Furthermore, given their own exposure to physical contact with the defendant and the seriousness of contracting the infection, the jail personnel should, in their own interest, be entitled to knowledge that enables them to cautiously avoid the defendant’s accidental or intentional communication of the virus to them. This portion of the court’s disclosure order clearly was within the court’s discretion.
We now, then, address the remaining, contested portions of the court’s disclosure
Particularly regarding disclosure to all criminal division lawyers in the office of the State’s Attorney, the State argues that the goal to provide appropriate charging information for the future is a legitimate factor supporting test-result disclosure here. The State emphasizes that the defendant was not a person who voluntarily submitted to an AIDS test and that she has a significant criminal history. It urges that her HIV infection can have an impact on possible future offenses.
After considering the parties’ analyses, we conclude that the court’s order for disclosure to the State’s Attorney personnel was without justification in the public interest and, thus, an abuse of discretion. The State’s most forceful argument to support the order is that in the event of potential prosecution under section 12 — 16.2 of the Criminal Codе of 1961, for example, the defendant’s HIV status could well be essential to prosecutors. Section 12 — 16.2 prohibits a person who knows that he is infected with the HIV virus from certain conduct which is considered to possess the potential for transmitting the virus. Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16.2.
The defendant argues that if, as has been speculated, she is involved in criminal activity in the future, prosecutors need only petition the court for disclosure of test results. Although the defendant does not directly argue the point, we conclude that her argument is supported by the disclosure language of section 5 — 5—3(h). As we read it, section 5 — 5—3(h) does not restrict the court to a one-time consideration of to whom it is in the public’s interest to disclose a defendant’s positive HIV status. (Sеe Williams v. Illinois State Scholarship Comm’n (1990),
We note that the fact of the defendant’s conviction of possessing injection equipment remains available to the State. Likewise, the State is informed that the defendant submitted to the mandatory HIV testing in connection with that conviction. Consequently, if the defendant’s HIV test results become relevant to preparations for specific future prosecution, the State will be in a position to know if it should petition the court for disclosure under section 5 — 5—3(h). In that event, the court can assess, based on additional relevant facts, whether disclosure to the State’s Attorney or his personnel is in the public interest.
Given the importance of the defendant’s privacy interest, the absence of the facts demonstrating a current prosecution use for the defendant’s test results, and our conclusion that the section 5 — 5—3(h) disclosure procedure will be available to the State’s Attorney if facts supporting a specific future prosecution arise, we find that the court’s order of disclosure to State’s Attorney personnel was an abuse of discretion. We vacate that portion of the court’s judgment.
Regarding release of test results to the Rockford pоlice supervisor, the State acknowledges that one of the court’s stated purposes, to allow the police to institute proper criminal charges in the future, is not directly applicable; the State’s Attorney has exclusive authority to determine the extent to which a person should be prosecuted for criminal conduct. (People v. Dandridge (1987),
In reaching our conclusion, we rely on part of the court’s second stated rationale for release of test results to the Rockford police department — that disclosure was necessary and in the public interest to proteсt law enforcement personnel against physical harm. We consider that police have occasion to stop and search individuals. Based on that fact, we find that the trial court here could reasonably and properly determine that section 5 — 5—3(h) disclosure to the police supervisor was in the public interest.
By ordering disclosure to a supervisory officer who is in a position to advise other officers of proper procedures for dealing with the public, the court provided that supervisor with increased information about officers’ potential contact with a population that includes infected individuals. Thus, it better prepared the supervisor to develop and promulgate an appropriate policy that, for example, would help officers avoid accidental punctures from a possibly infected needle carried on a searched individual’s person.
Accordingly, even weighing the defendant’s privacy interests (see Woods v. White (W.D. Wis. 1988),
Based on the foregoing, we vacate the portion of the order of the circuit court of Winnebago County that ordered disclosure of State’s Attorney personnel. We then affirm the order as modified.
Affirmed as modified.
INGLIS and BOWMAN, JJ., concur.