Published June, 2010

People v. Allen, No. 2009-4960 (Macomb County Ct. Mich. Cir. Ct. June 2, 2010)

On June 2, 2010, a Macomb County, Michigan Circuit Court judge dismissed an October 2009 charge brought under the state's anti-bioterrorism law against Allen, an HIV-positive man who allegedly bit his neighbor during an altercation. An assault charge against Allen is still pending.

The prosecution argued that Allen possessed or used a "harmful biological substance"—i.e., HIV—with intent to terrorize and possibly kill another person. Rejecting this argument, the court concluded that there was neither evidence of blood involvement, nor evidence that, because Allen. is HIV-positive, he intended to use his HIV infection to do harm. Citing Center of Disease Control (CDC) findings that saliva is not a means of HIV transmission, the court dismissed it as a possible biological weapon. However, the court did agree with a previous Michigan Court of Appeals decision, supported by information on the CDC website, that HIV-infected blood is a "harmful biological substance" as defined under the state bioterrorism law because it is implicated in the transmission of HIV.

Consequently, although Allen now must defend himself only against an assault charge, the opinion in this case does nothing to remove the risk that an HIV-positive individual can be arrested and charged as a "bioterrorist" under Michigan state law. In fact, three years earlier, in People of Michigan v. Odom, the Michigan Court of Appeals upheld the enhanced sentencing of an inmate charged with assault against corrections officers under the same statute and the characterization of HIV-infected blood as a "harmful biological substance" when the "assault" involved spitting. In that case, testimony against the inmate stated that his mouth appeared to be bloody (as a result of being roughed up by officers allegedly attempting to subdue him) and that it was this HIV-infected blood that was part of his spit that warranted enhanced sentencing under the state's bioterrorism statute. These cases demonstrate the need for the CDC to expand on and clarify its online guides on HIV and its transmission, in view of the appeals court's reliance in both cases on CDC publications on how HIV is transmitted to justify the characterization of HIV-infected blood, even in spit, as a weapon of bioterrorism.