Mothering: Utah Appeals Court Overturns Child Endangerment Charge in Marijuana Breast-Feeding Case, But Upholds Law Itself 1/20/06

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In a pair of rulings last week, the Utah Court of Appeals upheld the state's law making "exposure to" illicit drugs evidence of child endangerment, but drew the line at charging a mother under the law for breast-feeding her baby while admitting to smoking marijuana twice in a three-week period. In both cases, local officials brought charges related primarily to marijuana in the family home.

In Utah v. Nieberger, Karen Nieberger was arrested on child endangerment charges after police raided her home and charged her husband with selling marijuana. Nieberger admitted to occasional use, and police found pot, bongs, a pot pipe, and a single Valium when they searched the house. According to court records, the drugs and drug-related items were not easily accessible to Nieberger's children, ages two and three, nor did authorities allege any particular harm to the children.

Nieberger appealed the trial court decision to bind her over for trial on the endangerment charges, arguing that the Utah law was unconstitutionally vague because it did not define "exposure to" illicit drugs or require any finding of actual harm. But while the appeals court held that the evidence could be construed that Nieberger had taken "reasonable precautions" to protect her children from illegal drug use and sales in the home, state court rules required the court to interpret the law "in the light most favorable to the state."

From that perspective, the state law making unspecified "exposure to" illegal drugs sufficient for a child endangerment was not unconstitutionally vague and need not show actual harm because state legislators had expressly removed language requiring "risk" and replaced it with language mandating only "exposure," the court held,

But in Utah v. Draper, the court ruled that even under that friendly reading of the law, a trial judge should not have bound over Becky Lynne Draper to face child endangerment charges merely for breast-feeding her infant while admitting to smoking marijuana twice. Police had come to the residence with a marijuana sales warrant for her husband and then called Child and Family Services to interview Draper. During the interview, Draper admitted smoking twice in a one-month period, then proceeded to breast-feed her six-month-old infant. The investigator discussed with Draper "the danger of marijuana and breast-feeding," but did not request a drug test of Draper or take any action at that time. Instead, when her husband was arrested three weeks later, Draper was too -- charged with child endangerment.

But the appeals court threw out the charges against Draper because prosecutors relied solely on the case worker's contention that Draper's breast milk contained marijuana. "The State did not present any expert testimony at the preliminary hearing that marijuana can contaminate breast milk, of the degree or duration of that contamination, or whether the milk would be contaminated with a controlled substance or merely the metabolite of a controlled substance," the court found. Without such evidence, the court held, there is no reasonable inference that the baby was exposed to marijuana through his mother's breast milk.

"The presence of marijuana in Draper's breast milk at the time she nursed [the infant] is the heart of the State's case against Draper," the opinion noted. "Without some expert testimony suggesting that Draper's breast milk was likely to have contained a controlled substance at any particular time, there is no probable cause to believe that she violated" the child endangerment law.

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Issue #419 -- 1/20/06

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