Published January, 2007

People v. Odom, 276 Mich. App. 407, 740 N.W. 2d 557 (2007)

In 2004, an HIV positive inmate in Michigan was convicted on three counts of assault when he allegedly punched and spat on correctional officers during an altercation. Because he was bleeding from the mouth during the assault, A.O.'s spitting led to an elevated sentence of 5 to 15 years under a state law allowing for enhanced sentencing in crimes involving use of a "harmful biological substance," in this case, A.O.'s blood-containing saliva.

A.O.'s 2007 appeal was the first opportunity for the Michigan Court of Appeals to determine whether the blood of an individual with HIV could be considered a "harmful biological substance" under that state's bioterrorism law. Relying on a statement from the Centers for Disease Control (CDC) website that HIV can be transmitted via blood, the Court of Appeals concluded that HIV-positive blood is a "harmful biological substance" as it can "spread or cause disease in humans." The Court failed to consider the actual means of the officers' alleged contact with A.O.'s blood, or that there has been no documented case of HIV being transmitted through spitting.

A.O. denied that he initiated the altercation or that he spit at the officers. Though A.O. did have a bloody mouth after the altercation there was no discussion in the opinion as to how A.O. received his injuries. [It is not unusual, in cases involving assault on corrections or police officers, for civilian victims of assaults to be charged themselves to cover up professional misconduct of law enforcement staff.] The opinion also does not address how the bioterrorism statute could apply to HIV-positive individuals who may act in self-defense in an altercation and have no knowledge or intention of exposing another to HIV.

A.O. also argued that his HIV status should not have been disclosed to correctional officers without his consent. However, Michigan state laws allow for the non-consensual HIV testing of inmates who expose corrections officers to blood or bodily fluids, and the results of these tests may be disclosed to requesting officers without the inmate's consent. The court also pointed out that, under Michigan law, the HIV status of individuals may be released to third parties without consent if the information is deemed "reasonably necessary" to prevent a foreseeable risk of HIV transmission.