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Name: People v. Butler
Case #: S107791
Court: CA Supreme Court
District CalSup
Opinion Date: 12/01/2003
Subsequent History: None

A defendant may challenge the sufficiency of the evidence to support a probable cause finding under Penal Code section 1202.1, subdivision (e)(6), even in the absence of a timely objection. In this companion case to People v. Stowell, the court applied the general principle of appellate review that exempts a sufficiency of the evidence challenge from the general rule requiring a timely objection. The court rejected the Attorney General’s claim that the issue was moot, noting that the HIV testing itself was not the only consequence of a testing order, since the results of the test could be disclosed and could also be used to enhance the sentence for certain future offenses. Given the significant public policy concerns behind the requirement for HIV testing in appropriate cases, the court held that remand was appropriate to determine whether there was probable cause to believe that bodily fluids had been transmitted.