Tahlequah Attorney BlogCan You Be Charged For Using Drugs While Pregnant?

This Is Based Off Of State V. Green

Video Transcribed: What happens if you use drugs while pregnant? Well, something new, as about two weeks ago. My name is Ryan Cannonie, I am the Tahlequah criminal defense attorney for Wirth Law Office in Cherokee County. And I want to talk to you a little bit about State v. Green. Now, State v. Green is a case that came out of Garfield County, the Court of Criminal Appeals.

Now guess I should stop and say, if you’re not familiar with Oklahoma’s court system, we have an Oklahoma Supreme Court that handles civil matters, an Oklahoma Court of Criminal Appeals handles criminal matters.

So we really have two highest courts in Oklahoma. Now the Court of Criminal Appeals had this decision. They heard this case and put out this ruling on the 10th of September. Don’t know when you’re watching this. And it deals with the child neglect statute.

Now under Title 21 Section 843.5 in Oklahoma’s statutes, child neglect is very, very broad. And the reason for that is because the child neglect statute lists the definition of child neglect as the same as under the deprived statutes.

So if you’re looking at being criminally charged with child neglect, it has to meet the same elements, the same components of if you are going to be charged or alleged allegations on it in a child deprived case, a DHS type case.

So it’s because the DHS cases can cover so much, so many different situations, the definition is extremely broad. When it comes to controlled dangerous substances and drugs, it’s anything. It’s use of drugs, possession, exposure to anything around children. Also, there’s a catch, any exposure to illegal activities is also child neglect. So the court looked at a situation and there were several cases going on.

Rogers County had one. Some other counties had a few of these cases where they were arguing that before the woman gave birth, before the child was born, that if she committed any of these acts, that she should be able to be charged criminally with child neglect.

Now, why is this important? Well, this is a big change in our law. Before, if a mother use controlled dangerous substances while pregnant, she’d be looking at a deprived case, meaning that she would have to work a plan.

She would have to try to get her parental rights back. Not get them back, we get custody back and try to do everything she could to keep from losing her parental rights. And now, she could be looking at a felony offense. And child neglect is not just a felony, it’s an 85% felony. Now it’s not listed under the violent crime statute under Title 57, but it is an 85% crime.

Now that means if, let’s say, you were found guilty of this and sentenced to 10 years. Well, that means you would have to serve eight and a half of those years before you even qualify for parole. That means that any sentence you got, 85% of it has to be served before you can qualify to be paroled. So this raises the stakes on child neglect.

Now the court, I’m going to read from the actual decision because I don’t want to make a video paraphrasing, and then get something, someone misinterpret what they actually said. So this is what the court said about it. They said, “Just as a viable fetus, maybe the victim of a homicide or an assault with a dangerous weapon, so too may he or she be a victim of child neglect under the facts presented in this case.”

In the Green case, the facts that were presented was that the mother used controlled dangerous substances. I don’t remember exactly what it was. I want to say meth, I’d have to look back through the facts of it. And she lost her child. The baby died before being born.

So in this situation, the court said she can be held liable for exposing that child through child neglect. Now, there were some other cases where the child went ahead and ended up being born. And those cases are also going to be able to charge child neglect.

What the court did do in this is they limited it to just the controlled dangerous substance part. There were some arguments that if a mother is out, while pregnant, committing offenses under Title 21, which is your criminal statutes there, let’s say a burglary or any other crime that’s out there, that they said, “Well, then she’s exposing the child to that crime.”

The court didn’t go that far. They limited this just to the controlled dangerous substance aspect. They didn’t even expand it to all the definitions of child neglect. They just looked at this one aspect of it. So this is a big change in the law.

There’s a lot of public policy debates going on, if this is or isn’t a good thing. People on one side say it’s good because it puts a punishment out there for people who are exposing children to controlled substances before they’re born, which causes withdrawal and other factors like that.

There’s other people who say, “Well, this is going to keep people who are using from seeking medical attention or prenatal care.” That’s not really up for me to decide on that, but it is important that you’re aware of this.

So this makes it where just a few weeks ago, if you were in this situation, you’d be looking at a deprived case. Now you could also be looking at, in addition to that deprive case, a criminal felony case.

So if you find yourself in this situation, if you have a family member in this situation, if you need a consultation, if you end up being charged under this, because there will be a lot of charges coming out under the statute that are under this case, or using the statute, but under this new case law, then please give us a call. 918-932-2800.

Or you can go to our website, Tahlequahattorney.com. Fill out the little web form, send it to us. We’ll have a Tahlequah attorney get in touch with you. We do free consultations, and maybe we can help you in your situation.

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