concurring specially.
I believe that the compelling governmental interests served by OCGA § 17-10-15 justify the intrusion into individual privacy rights5 that results from compelled blood testing for the presence of HIV, so long as there is probable cause to believe that the victim of a crime was significantly exposed to a perpetrator’s blood or other bodily fluid to the degree that the Centers for Disease Control have determined that transmission of HIV could have occurred. Therefore, I concur in the majority’s ultimate conclusion regarding the constitutionality of the statute.
I write separately, however, to emphasize that the facts of this case failed to establish probable cause to believe that “significant exposure,” as statutorily defined, occurred during the struggle between Detective Woods and appellant Adams. Thus, the superior court was not authorized under OCGA § 17-10-15 to compel Adams’s submission to an HTV test, and the court’s order that Adams be tested was erroneous. Because Adams has already been forced to submit to an HIV blood test, any challenge to the superior court’s probable cause determination in this case is moot. However, the court’s compelling of an HTV test, despite the lack of probable cause, highlights inherent dangers that lurk in OCGA § 17-10-15, and the potential for gross abuse of the statute.
When Detective Woods attempted to arrest Adams, a struggle ensued between them. Detective Woods testified that at the time of the struggle, he noticed that Adams’s hand was bandaged. Detective Woods did not know whether Adams actually was bleeding, because “it [the struggle] happened real fast,” but he thought that there “appeared] to [be] some blood coming through the bandage or on top of the bandage.” During the struggle, Detective Woods received a *411scratch on his thumb and index finger.
When asked whether blood-to-blood contact occurred during the struggle, Detective Woods testified that, “It possibly could. I mean when you’re fighting somebody. If I told you it did [occur], I’d be lying, because I don’t want to lie to anybody. ... It could have. It could have mixed together. There’s a possibility there.”
OCGA § 17-10-15 (b) authorizes the superior court to compel one accused of a crime to submit to an HIV test, “upon a showing of probable cause . . . that significant exposure occurred.” “Significant exposure” occurs when there is “contact of the victim’s ruptured or broken skin . . . with the blood or body fluids of the person arrested . . . of a magnitude that the [CDC] have epidemiologically demonstrated can result in transmission of [HIV].”6
Under the facts discussed above, there was not a showing of probable cause that, when Detective Woods struggled with Adams, “significant exposure” occurred. It is established that a determination of probable cause must be made based upon common sense and practicality.7 In this case, Detective Woods testified that (1) he saw that Adams was wearing a bandage; (2) he thought he might have seen blood on the bandage; and (3) in his opinion, it was “possible” that blood-to-blood contact occurred between him and Adams. However, Detective Woods admitted that he could not say that such contact did in fact occur. Based upon that testimony, it was unreasonable for the superior court to conclude that there was a reasonable probability that significant blood-to-blood exposure, sufficient to transmit HIV, took place. In fact, in reaching that conclusion, the superior court defied both common sense and the commonly understood facts regarding the transmission of HIV.
What Detective Woods’s testimony did establish was that there was a chance that there was blood-to-blood contact in his struggle with Adams. However, when dealing with physical intrusions into the body to collect blood samples, the Fourth Amendment’s protection against unreasonable searches “forbid[s] any such intrusions on the mere chance that . . . evidence might be obtained.”8 Unfortunately, that is exactly what occurred in this case. On the mere chance that there had been blood-to-blood contact, and assuming that if it occurred, that contact was sufficient to transmit HIV, the superior court ordered that Adams’s blood be withdrawn and tested. That action, I believe, was unreasonable under the Fourth Amendment, and improper under OCGA § 17-10-15.
Because the compelled HIV test has already been performed on *412Adams, challenges to the superior court’s finding of probable cause in this case are moot. Nonetheless, the superior court’s probable cause finding highlights an ominous danger inherent in OCGA § 17-10-15. Decades into the struggle against HIV, there is a preponderance of ignorance regarding how and under what circumstances the virus is transmitted. Permitting the superior courts to force one accused of a crime to submit to an HIV blood test upon anything less than a showing that, based upon medical and scientific knowledge, there was a significant risk of HIV exposure during commission of the crime can only perpetuate that ignorance. OCGA § 17-10-15 does not sanction the testing for HIV of suspects who, like Adams, merely are bandaged or cut at the time of arrest. Rather, the statute requires that before ordering an accused to be tested for HIV, a superior court must be satisfied that probable cause exists to believe that exposure occurred to the degree “that the Centers for Disease Control have epidemiologically demonstrated can result in the transmission of [HIV]” to the crime victim. Accordingly, the statute mandates that before compelling an accused to sit for an HIV blood test, the judges of the superior courts must educate themselves (with the assistance of counsel) as to the medically-recognized facts regarding the virus’s transmission, and satisfy themselves of a reasonable probability that those facts exist in the case before them.
Decided May 4, 1998. John D. Staggs, Jr., for appellant. Richard E. Currie, District Attorney, Theo M. Sereebutra, Assistant District Attorney, for appellee.Otherwise, the superior courts will be authorized to compel the physical intrusion of an accused based upon nothing more than ignorance and hyperbole. In addition to being unauthorized under the statute, that situation would foster the statute’s rife abuse by individuals who would harass those accused of a crime. For these reasons, I emphasize that the superior court judges must view the statute’s probable cause requirements in the strictest sense, and satisfy themselves that those requirements have been met before compelling an HIV blood test under OCGA § 17-10-15.
See Skinner v. Railway Labor Executives Assn., 489 U. S. 602 (109 SC 1402, 103 LE2d 639) (1989).
OCGA § 17-10-15 (g).
See Ornelas v. United States, 517 U. S. 690 (116 SC 1657, 1661, 134 LE2d 911) (1996).
Schmerber v. California, 384 U. S. 757, 769-770 (86 SC 1826,16 LE2d 908) (1966).