Health and Safety Code 120290 HS – Exposure to an Infectious Disease in California


Health and Safety Code 120290 HS
is the California statute that makes it a crime for a person intentionally to transmit an infectious disease.

The code section states:

“A defendant is guilty of intentional transmission of an infectious or communicable disease if all of the following apply:

The defendant knows that he or she or a third party is afflicted with an infectious or communicable disease.

The defendant acts with the specific intent to transmit or cause an afflicted third party to transmit that disease to another person.

The defendant or the afflicted third party engages in conduct that poses a substantial risk of transmission to that person.

The defendant or the third party transmits the infectious or communicable disease to the other person.”

Examples:

  • knowingly transmitting herpes to a sexual partner.
  • transmitting HIV via sharing a needle for drug injection.
  • giving a person AIDS by having unprotected sex with him/her.

Defenses

A defendant can fight a 120290 HS charge with a legal defense. A few common defenses are:

  • no knowledge of infectious disease,
  • no intent to transmit, and/or
  • no transmission.

Penalties

A violation of this law is a California misdemeanor (as opposed to a felony or an infraction).

The crime is punishable by:

  • imprisonment in county jail for up to six months, and/or
  • a maximum fine of $1,000.

Our California criminal defense attorneys will highlight the following in this article:

two men embracing
California Health & Safety Code 120290 makes it a misdemeanor to willfully expose someone to an infectious disease

1. When is the exposure to an infectious disease a crime in California?

Health and Safety Code 120290 HS is the California statute that makes it a crime for a person to intentionally transmit an infectious disease.

A prosecutor must prove four things to convict a person under this statute. These are that the defendant:

  1. knew that he, or a third party, had an infectious or communicable disease,
  2. acted with the intent to transmit, or cause a third party to transmit, that disease to another person,
  3. engaged in “conduct that posed a substantial risk of transmission” to another person, and
  4. transmitted (either by his own actions or those of a third party) the disease to the other person.1

An “infectious or communicable disease” means a disease that:

  • spreads from person to person (either directly or indirectly), and
  • has a significant public health implication.2

Examples include:

  • HIV,
  • AIDS,
  • herpes,
  • gonorrhea, and
  • chlamydia.

Conduct that poses a substantial risk of transmission” means an act that has a reasonable probability of disease transmission.

Examples include:

  • unprotected sex, and
  • sharing a needle for drug injection.

2. Are there legal defenses?

A defendant can raise a legal defense to challenge a charge under this law.

Three common defenses are:

  1. no knowledge of infectious disease,
  2. no intent to transmit, and/or
  3. no transmission.

2.1. No knowledge of infectious disease

A person is only guilty of an HS 120290 charge if he knew that he had an infectious disease. This means it is a legal defense for an accused to show that he did not have this knowledge.

2.2. No intent to transmit

Recall that under California STD laws, it is only a crime if one intentionally transmits a disease.

The law states that a defendant does not act with this intent if he takes, or attempts to take, practical means to prevent transmission (like wearing a condom during sex).3

Therefore, an accused can fight an HS 120290 charge by showing that he did not act with a specific intent to transmit.

2.3. No transmission

A defendant is only guilty of violating this law if there was, in fact, a transmission of an infectious disease. An accused, then, can try to show his innocence by proving that there was no transmission.

3. What are the penalties?

A violation of this code section is a California misdemeanor.

The crime is punishable by:

  • imprisonment in county jail for up to six months, and/or
  • a maximum fine of $1,000.4
A man and a woman embracing
Proof of intent to infect the other person is required under Health and Safety Code 120291

4. Are there immigration consequences?

A conviction of this law will not have negative immigration consequences.

United States immigration law says that certain kinds of criminal convictions can lead to:

An HS 120290 violation, however, is not one of these types of convictions.

5. Can a person get a conviction expunged?

A person convicted of this crime is entitled to an expungement provided that he:

  1. successfully completes probation, or
  2. completes a jail term (whichever is relevant).

If a party violates a probation term, he could still possibly get the offense expunged. This, though, would be in the judge's discretion.

Under Penal Code 1203.4, an expungement releases an individual from virtually "all penalties and disabilities" arising out of the conviction.5

6. Does a conviction affect gun rights?

A conviction under this statute does not have negative effects on a defendnt's gun rights.

Some crimes in California (e.g., felonies) result in an accused losing his right to:

  • own,
  • possess, or
  • use

a gun.

The criminal exposure to an infectious disease, though, is not one of these crimes.

7. Are there related offenses?

There are three crimes related to the exposure of an infectious disease These are:

  1. medical donation by a person infected with HIV – HS 1621.5,
  2. penalty enhancement for sex crimes by persons with HIV or AIDS – PC 12022.85, and
  3. sexual battery – PC 243.4.

7.1. Medical donation by a person infected with HIV – HS 1621.5

Health and Safety Code 1621.5 HS makes it a crime in California for a person to:

  1. donate blood, organs, semen, or breast milk, and
  2. do so with the knowledge that he has HIV or AIDS.

Note that this law pertains to donation while HS 120290 focuses on transmission.

7.2. Penalty enhancement for sex crimes by persons with HIV or AIDS – PC 12022.85

Per Penal Code 12022.85 PC, there is a three-year sentencing enhancement if a person is infected with HIV/AIDS and commits:

This three-year enhancement is in addition to the jail/prison term of the underlying offense.

7.3. Sexual battery – PC 243.4

Penal Code 243.4 PC makes it a crime in California for a person to commit a sexual battery.

A “sexual battery” is the touching of another's intimate parts for purposes of sexual:

  • gratification,
  • arousal, or
  • abuse.

Note that this law involves “touching” while HS 120290 involves “conduct that poses a risk of transmission.”

For additional help...

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Legal References:

  1. California Health and Safety Code 120290 HS.

  2. California Health and Safety Code 120290e2 HS.

  3. California Health and Safety Code 120290b HS.

  4. California Health and Safety Code 120290g HS.

  5. California Penal Code 1203.4 PC.

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