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SALT LAKE CITY (AP) -- A man authorities say may have knowingly spread the AIDS virus has been freed from jail after Provo police bungled the handling of a blood sample needed to confirm his HIV status.
Michael Behrens, 42, a transient who prosecutors fear may leave the area, was released Tuesday after prosecutors were forced to drop charges of communication fraud and reckless endangerment because police failed to send off the sample for testing.
"It's the responsibility of the state to get evidence together in a timely fashion," said Utah County prosecutor David Wayment on Wedneday. "We have to be fair to people and not keep them in jail week after week."
Behrens, who is married, was jailed last month for allegedly having sex with another woman without informing her of his HIV-positive status. He was held for more than a month because he couldn't make bail.
The case is believed to be the first of its kind in Utah, and prosecutors struggled to find an appropriate statute under which to charge Behrens.
Utah laws don't specifically criminalize failure to disclose one's HIV-positive status before consensual sex. But state laws prohibit any action that puts another person at risk of bodily injury or death.
Provo police discovered Wednesday that Behrens' blood never left the department.
"We messed up here," police Capt. Brad Leatham told The Associated Press. "This is something we will correct."
Blood being tested for HIV requires special paperwork and is sent to a different department than other types of blood tests, Leatham said, and Behrens' sample got lost in the shuffle. The blood has now been sent for HIV testing.
No disciplinary action is expected, Leatham said.
"We'll take care of this so it doesn't happen again," he said. "We hate to put a case in jeopardy."
Despite Behrens' claim that he was HIV-positive, Wayment nevertheless was awaiting test results to confirm that so the case could proceed. Authorities said he couldn't be prosecuted if the results came back negative.
Test results typically take a week, but no more than two, said Joe Miner, director of the Utah County Health Department. "If there's something urgent they could do it in a day," he said.
Two Provo police officers and the alleged victim failed to show up in court Tuesday for a preliminary hearing. Leatham said the subpoenas to appear in court didn't arrive from the prosecutor's office until Tuesday afternoon, after the hearing.
Police say the case began when Behrens' wife called police to report that her husband was at a Provo hotel with another woman. The wife allegedly said she was concerned that the woman may not know that her husband might be HIV-positive.
Police said they sent an officer to the motel to inform the woman, who an hour later contacted police to file a report against Behrens.
Behrens was arrested Jan. 15, and several days later police obtained a search warrant to draw blood to verify his HIV status.
Police say Behrens has claimed that he told the woman he was HIV-positive before they had sex.
Prosecutors and police have said Behrens could be a flight risk. Wayment said Behrens has a "multistate" criminal past but he refused to elaborate, saying the investigation of Behrens wasn't public record.
"There's nothing that's holding him here now," Leatham said.
Wayment said charges could be re-filed when the blood results are available.
(Copyright 2003 by The Associated Press. All Rights Reserved.)
