Intent to Kill Charged in Biting Attack : Justice: Novel attempted-murder case against patient with AIDS virus who bit two nurses raises legal and medical questions. Some contend the charge is overkill.

In an apparently unprecedented case here, a man infected with the AIDS virus was arraigned Friday on two counts of attempted first-degree murder after he bit two nurses attempting to restrain him during violent outbursts at an East San Diego hospital.

The case against 32-year-old Steven Paul Prior, who was booked into the downtown jail in lieu of $50,000 bond, raises a variety of legal and medical questions, not the least of which is whether purposeful biting by a man with the fatal disease constitutes intent to commit murder.

“The key issue is intent,” said Deputy Dist. Atty. Robert Hammes, who filed the charges against Prior on Friday. “Right now, based on what we have and the (defendant’s) actions, he meant a lot of harm to these people.”

But Timothy Pestotnik, an attorney specializing in AIDS-related legal issues, said the attempted-murder charge appears to be “overkill” because of the scant chance of transmitting the HIV virus that causes AIDS by biting.

“There are no cases reported anywhere in the country where someone has transmitted HIV by a bite, a spit or a scratch,” said Pestotnik, an attorney for Luce, Forward, Hamilton & Scripps. “Because of that, it would seem to be virtually impossible, if not impossible, to transmit the virus in that fashion.”

Marian Modrak, a public defender and volunteer attorney at the AIDS Legal Clinic who previously worked as a nurse, said agitated and restrained psychiatric patients frequently attempt to bite their subduers--but not with the intent of killing them.

“I’m quite surprised as to why (prosecutors) would do this,” Modrak said. “It seems like a bit of overcharging.”

Pestotnik, Modrak and a spokeswoman for Dist. Atty. Edwin L. Miller’s office could not recall any previous instances in which a San Diego AIDS victim faced an attempted-murder charge for biting. Pestotnik said the charge was levied once in an Orange County case, but the defendant there was acquitted.

Some states have written laws defining the charges against an HIV-infected person who bites another individual, Pestotnik said, but California has not.

In 1988, a San Diego jury acquitted a man of battery on a police officer and of resisting an officer for biting a policeman and a reserve patrolman during the 1986 Gay Pride Parade in Hillcrest. In that case, prosecutors unsuccessfully attempted to upgrade the charges to assault with a deadly weapon, the weapon being the AIDS virus.

Prosecutors also were unsuccessful in securing an involuntary AIDS test on blood drawn from defendant Brian Barlow when the 4th District Court of Appeal barred the procedure. After biting the officers in a scuffle, Barlow was asked whether he had AIDS and replied, “You’d better take it that I’ve got AIDS for the officers’ sake.”

In April, a North Hollywood man who prosecutors contend knew he had the AIDS virus pleaded no contest to charges of assault with intent to do great bodily injury for biting and spitting bloody saliva on law enforcement officers and a nurse.

Hammes said that Prior was brought to Villa View Community Hospital in East San Diego Tuesday evening after attempting to commit suicide by taking an overdose of AZT, a drug used to slow the progress of AIDS. Hammes said that Prior is suffering from AIDS related complex, or ARC, a term used to describe the stage of the disease before full-blown AIDS develops.

After being admitted to a psychiatric intensive care unit, Prior became violent about 3:30 a.m. Wednesday, according to Hammes.

As an unidentified nurse attempted to restrain him, Prior allegedly bit the man on the hand, breaking the skin, Hammes said. During the outburst, Prior had torn out his nasal tube--allowing blood from his nose to run into his mouth--and an intravenous tube running into his arm, Hammes said.

Thus, when Prior bit the nurse, the two men’s blood came in contact, he said. “This is a blood to blood contact,” Hammes said.

About 80 minutes later, another nurse loosened the restraint on Prior’s left hand to allow him to urinate and turned away, Hammes said. Prior then tried to untie a leg restraint and became violent when the nurse attempted to subdue him, Hammes said.

Prior allegedly bit that nurse below the left wrist and above the little finger of the left hand, then told him “I’m going to bite you again,” before biting him twice more, Hammes said.

Prior was arraigned in Municipal Court before Judge Larry Stirling, who last month came under criticism for ordering court personnel to clean areas of his courtroom after an appearance by a coughing defendant who had tested positive for the AIDS virus.

Prior pleaded innocent and faces a preliminary hearing on the charges Aug. 2.