The mere presence of illegal drugs in a home is not sufficient to allow prosecution under a state law that says children are endangered when exposed to them, the Utah Supreme Court ruled last Friday. The court ruled unanimously in State v. Gallegos, which consolidated the cases of two women charged with felony child endangerment after police found drugs in their homes.

In one case, police found cocaine in a purse and a jewelry box on a dresser in a room where the mother and her three children were located. In the other, they found methamphetamine precursors in a set of plastic drawers in an outbuilding of a home where a 13-year-old lived with her mother.

The Utah law, similar to those in many other states, makes it a felony to allow a child "to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia."

In both cases, defense attorneys argued that "exposure" must include actual risk of harm and that the mere presence of drugs in the home did not rise to that level. The state high court agreed.

"There must be an actual risk of harm... Exposure must go beyond mere visual or auditory exposure, such as exposure to images of drugs on television or an infant being able to see a controlled substance from the confines of a crib," Chief Justice Christine Durham wrote for the court.

"The child must have a reasonable capacity to actually access or get to the substance or paraphernalia or to be subject to its harmful effects, such as inhalation or touching. This seems a common sense interpretation of the statute," the court said.

If the mere presence of a controlled substance were enough to establish grounds for child endangerment, many people who use legal prescription drugs "would be committing felonies," the opinion noted.