In re Avalos, 2019 WL 151549 (Jan. 10, 2019)

In the case of a man who was ordered by the trial judge to submit to HIV testing prior to release from prison despite having not committed a sex crime, a California intermediate court confirmed that courts do not have a free standing power to order HIV testing of defendants and inmates.

When Vincent Johnny Avalos was convicted of a number of crimes, including attempted murder, and sentenced in 2007, the trial judge ordered that he submit to HIV testing, the results of which were to be communicated back to the court prior to his release from prison. After the Department of Corrections wrote a letter to the court inquiring as to the validity of the order, Avalos challenged it, arguing that he had not been convicted of a crime that fell within California’s statutory exception to its general ban on involuntary HIV testing. California’s 4th District Court of Appeal granted Avalos’ motion to vacate the order, confirming that outside of the narrow statutory exception, judges are bound by California’s strong policy against involuntary testing and do not have the power to order HIV testing in prison.

Thanks to Art Leonard and the LGBT Law Notes of New York Law School for their analysis, which we have used in summarizing this case.