Knowingly putting another person at risk of contracting an infectious disease without the victim's knowledge is not morally correct. Moreover, it is a severe offense, and you risk facing incarceration, paying fines, and having a criminal record. Fortunately, it's possible to defend against the allegations with an experienced attorney like Legal Leah handling the case. We take pride in protecting the constitutional rights of hundreds of clients in Van Nuys.
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What is Deliberate Exposure to Communicable Infections?
Under Health and Safety Code 120290, it is illegal to deliberately put somebody else at risk of a health condition that you hold.
To be sentenced for the violation of this law, the prosecutor should prove that:
- You were aware that you or another person held the communicable or infectious ailment.
- You acted with the intent to spread or make the third party to spread the disease to somebody else.
- You performed an act that posed a significant danger of spread to somebody else.
- You transmitted the infectious ailment to somebody else (it can be your conduct or those of a third party)
An individual is also guilty of Health and Safety Code Section 120290 HS if:
- A medical expert acting under a situation which makes obtaining a doctor order or quarantine infeasible has ordered the accused not to perform an act that has significant risks of transmission of an infectious health condition, and
- The accused executes the act within ninety-six hours of the doctor's instruction
- The doctor may issue two (2) instructions to the accused that can lead to breaking this code.
Please note, the following doesn't violate Health and Safety Code Section 120290 HS:
- Being expectant while infected with a contagious ailment
- Declining treatment for a communicable disease while pregnant
- Continuing the pregnancy while suffering from a communicable disease
Definition of Legal Terms
As far as the Health and Safety Code Section 120290 is concerned, the definitions below apply. They will help you understand HS 120290 better.
Communicable or Infectious Disease
The term "communicable or infectious disease" refers to a health condition that spreads from one person to another and has a substantial public health impact. The spread can be either directly or indirectly. Perfect examples are AIDS, HIV, herpes, chlamydia, COVID 19, and gonorrhea.
Typically, the court will not charge HS 120290 to a person with a cold. However, the story changes when you intentionally transmit cold to an immuno-deficiency patient.
Conduct Which Poses a Significant Danger of Transmission
The term ''conduct which poses a significant danger of transmission'' refers to conduct that has a practical possibility of transmitting the disease. It can be sharing needles for drug injections or unprotected sex.
Before a defendant is found guilty of HS 120290, the prosecution team must present evidence that they were aware of the disease. However, that doesn't mean the defendant can avoid criminal responsibility by avoiding getting a diagnosis for the health condition.
In layman's language, the law mandates that the defendant only knew of the potential risks. The test is whether a reasonable, prudent individual in a similar situation could have realized the presence of the risk. Whether a situation is believed to be reasonable hinges on the case's facts and the jury.
For instance, if you had been involved in a lot of unprotected sexual activity and had lesions on the genitalia, there is a likelihood that the judge will rule that you knew of the possible risks of engaging in sexual intercourse. Therefore, it does not matter whether you get a sexually transmitted disease test or diagnosis to confirm you had the STD. On the contrary, if you lately separated from your partner, where your spouse cheated on you and got a sexually transmitted disease without your knowledge and spread the ailment to your new partner, the judge will likely find you innocent.
Additionally, the jury significantly affects what is considered reasonable. While a conservative Christian jury member who opposes pre-marital sex find a lack of knowledge about an STD unreasonable, a young judge might find the lack of knowledge practical.
Bearing that in mind, the jury you choose affects your case outcome. Your criminal defense attorney should be able to help you in selecting the jury.
Sexual activity can be:
- Insertive anal or vaginal intercourse by an infected man
- Receptive consensual vaginal intercourse by an infected female with a man
- Receptive consensual anal intercourse by an infected person with a man
Typically, a defendant engages in insertive and receptive sex when they are a top and bottom, respectively.
Sex is unprotected if the defendant fails to use a condom. Oral sex is not unprotected sex.
How Deliberate Exposure to Communicable Infection Case is Built
Per HS 120290, the prosecution should use a pseudonym when referring to the witness. The prosecutor should only disclose the name, among other identification details in court using a camera. Additionally, the court is required to seal the case details to prevent more revelation unless requested at the time of discovery.
In other words, you will not know the plaintiff's name and identifying characteristics like address, marital status, residence area, age, ethnicity, or race until the details are disclosed in court. Court decisions, orders, motions, or petitions brought by you or the witness will be worded. This strategy prevents members of the public from identifying the plaintiff.
A court after a finding a probable cause which a defendant has violated HS 120290, shall order:
- Attendance of an individual with the knowledge thereof, or
- Producing of the defendant's medical records,
provided the attendance of the individual subpoenaed or return of the medical record is initially submitted to a court of law for an in-camera inspection. Only after a realization that the defendant's medical record or testimony is essential to the crime will the information discovered from the court order be revealed to the prosecution team as well as admissible.
Surveillance reports or records maintained by the state or health experts or medical records, medical devices, prescription, or medications won't be used to prove the intent. Moreover, the defendant is banned from using their medical proof to establish that they did not plan to transmit the infectious disease.
Penalties Attracted by Deliberate Exposure of Communicable Infections
Violating 120290 HS is a misdemeanor. It attracts the following consequences:
- A maximum of six months in county jail
- One thousand dollars in fines
A 120290 HS conviction does not carry adverse immigration penalties.
According to the U.S. immigration law, only criminal conviction of drug crimes, domestic violence offenses, aggravated felonies, firearm offenses, and crimes involving moral turpitude can result in:
- An immigrant being marked inadmissible, or
- An immigrant being deported.
Nevertheless, violation of the Health and Safety Code Section 120290 is not one of the convictions mentioned above.
Firearm Rights Impact
120290 is a misdemeanor and doesn't affect your firearm rights. That means you will not lose your entitlement to possess, use, or own a gun.
How to Fight HS 120290 Charges
If charged with deliberate exposure to communicable infections, you can avoid a conviction by using one of the legal defenses below. The legal defense you use depends on your case circumstances.
You Did Not Have Knowledge of the Communicable Disease
A defendant is guilty of HS 120290 if they were aware that they had the infectious medical condition. That means it's a valid defense for the defendant if they didn't know.
You Didn't Have the Intention to Transmit the Disease
One of the elements of the crime in question is that you intentionally transmitted the disease.
According to STD law, the accused doesn't act with intent if they take, try to take reasonable means to stop transmission. Practical means to prevent transmission is a device, behavior, activity, or method demonstrated scientifically to measurably reduce or limit the danger of transmission of the contagious disease. It can be the use of a condom, prophylactic device, barrier protection, or good faith compliance with a medical treatment regimen for the disease prescribed by a medical practitioner.
Therefore, your criminal defense attorney can fight the charge by proving that you didn't plan to transmit the medical condition.
There Was No Transmission
You can only be sentenced for deliberate exposure to contagious infections if you indeed transmitted the disease. Your defense attorney, therefore, can attempt to prove your innocence by establishing transmission did not occur.
A judge could pardon your conduct if you were unconscious when you allegedly violated HS 120290. Your attorney can base the unconscious state of mind on factors like coercion or involuntary intoxication.
The entrapment defense is applicable where the defendant would not have transmitted the disease if another party hadn't intervened. You can argue that the other party's harassment, threats, or coercion resulted in you committing the offense.
A coerced confession can assist in establishing entrapment defense. Your defense attorney might claim that the law enforcers used improper or unlawful interrogation methods to obtain a disclosure from you. The strategies can include continuing to question you even when you request for a lawyer, beating you, or depriving you of food, water, or sleep.
Discussed below are offenses that are charged alongside or together with Health and Safety Code Section 120290:
Medical Donation by an Individual with HIV
According to HS 1621.5, it is a California felony for an individual infected with Human Immunodeficiency Virus to donate breast milk, semen, body tissue, body organ, or blood.
HS 1621.5 applies when the donation is meant for distribution. Moreover, it applies when the donation is made to breast milk or semen banks or medical centers.
However, the code doesn't apply to blood donated for personal use. Therefore, if you donate blood prior to undergoing surgery or if you require a blood transfusion, you aren't guilty of medical donation by a person who has HIV.
The offense attracts a two (2), four (4) or six (6)-year county jail sentence.
Sentencing Enhancement for Sex Offenses by Individuals with AIDS or HIV
Penal Code Section 12022.85 PC provides three years of penalty enhancement when a defendant with HIV/AIDS is found guilty of:
- Rape- Penal Code Section 261 PC
- Statutory rape- Penal Code Section 261.5 PC
- Sodomy- Penal Code Section 286 PC
- Spousal rape- Penal Code Section 262 PC
- Oral copulation with a child under 18 years of age- Penal Code Section 288 (a) PC
Please note the sentencing enhancement is consecutive and additional to the consequences of the underlying offense.
Sexual Battery (Penal Code Section 243.4 PC)
While HS 120290 can be defined as an act that poses the risk of transmission, sexual battery revolves around touching another person's intimate part for sexual arousal, abuse, or gratification. An intimate part can be anus, sexual organ, female breast, buttocks, and groin.
It is a wobbler. If charged with a California misdemeanor, you will face:
- Six (6) months in jail
- Two thousand dollars in fines or three thousand dollars if the victim was your worker
- A five-year summary (informal) probation with terms like community service and enrollment in a batterer's education program
A felony, on the other hand, is punishable by:
- A felony (formal) probation
- Two, three, or four years in state prison
- Ten thousand dollars in fines
- Registration as tier three sex offender for life
Understanding the Difference Between Intentional Transmission of Human Immunodeficiency Virus (HS 120291) and HS 120290
Deliberate exposure to communicable infections involves all infectious diseases. Intentional transmission of HIV, on the other hand, is particular to HIV. HS 120291 requires the defendant to have planned to infect the alleged victim with HIV. To be sentenced for Health and Safety Code Section 120291 HS, the prosecutor must prove that you:
- Engaged in unprotected sex
- Were aware that you had HIV during the sex
- Didn't tell the victim about the HIV status
- Acted with a specific intent to infect the alleged victim
Violation of HS 120291 is a California felony. It carries three (3), five (5), or eight (8) years in California state prison.
How Specific Intent Differs from Willfully
While these legal terms refer to deliberate conduct, they have a difference as far as codes 120291 and 120290 are concerned.
About Health and Safety Code Section 120290 HS, you willfully transmitted human immunodeficiency virus, if you allowed a condition needed for infection and did it with the knowledge of the likelihood of infecting somebody else.
Specific intent in HS 120291 means deliberate conduct of transmitting HIV to your partner. In layman's language, the primary reason for having sex was to infect your sexual partner with the virus.
Criminal Court Process Following an HS 120290 Arrest
Because HS 120290 is a California misdemeanor, the case will go through five phases following the arrest. The court can choose to drop the case at any stage if the evidence presented is weak. Here is the breakdown:
This is your first opportunity to enter a plea in the case. You can enter either guilty, no contest, or not guilty plea.
If you enter a no contest or guilty plea, the case proceeds to a sentencing hearing. If you enter a not guilty plea, the judge will address your bail.
Bail and Bail Hearing
Bail is the money you post with a court of law as a guarantee you will attend your court hearings. Typically, bail is set according to the county bail schedule.
However, during a bail hearing, the law allows you to request the judge to lower the bail amount. The judge will put the severity of the offense, criminal history, among other factors, into account before reducing, raising, or eliminating the bail amount.
Usually, the pretrial phase includes filing motions, court appearances, discovery, and negotiations. It gives the prosecution team and your attorney an opportunity to outline the case's weaknesses and strengths. Also, the parties can discuss the different circumstances surrounding your case and plea bargains.
Trials can be of two categories: jury trial or bench trial. A bench trial happens when the judge functions as both the jury and judge. A jury trial involves twelve members of the community hearing the evidence against you and deciding whether you are guilty.
If you think the judge made a wrong ruling, you are entitled to appeal the case. The appeal process involves hearing witness testimony, accepting new proof, and retrying your case. The result of the appeal could have the case overturned, reversed, or remanded.
Can You Get Your Conviction Expunged?
An expungement is a type of post-conviction relief under PC 1203.4. It releases the defendant from disabilities and penalties that come with a conviction.
Expungement offers you a fresh start from the criminal record. Moreover, it helps you maintain or secure professional licenses, employment, housing, and join educational institutions.
If you are convicted of the crime in question, you are entitled to expungement as long as you:
- Successfully completed probation
- Completed your jail term
If you violate probation terms and conditions, you can still get your offense expunged. However, this is within the court's discretion.
Find Legal Representation Near Me
If you know that you are infected with herpes, coronavirus, HIV/AIDS, or any other infectious disease, you might face a criminal charge should you deliberately expose another person to the health condition. Specifically, you could face a six-month jail sentence and pay a fine of one thousand dollars. If you are charged with the offense, the legal team at Legal Leah can assist you. We can analyze the case circumstances and facts and help you develop a valid defense. To book your initial free consultation, contact us at 818-484-1100.