I have a case where a mother gave birth to a baby with such severe damage as the result of methamphetamine use that the baby will probably die in a few weeks or months. Everyone in my community believes that the mother should be prosecuted for something. Has anyone prosecuted a mother in a similar situtaion for injury to a child or endangering a child? Has anyone prosecuted a mother in a similar situtation for possession of a controlled substance. Could a person who delivered meth to the mother be prosecuted for something relating to the injury to the child? Thank you for reading such a long question. I look forward to your responses.

Penal Code: Section 22.12. APPLICABILITY TO CERTAIN CONDUCT.
This chapter does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is: (1) committed by the mother of the unborn child.

You could stir up your population into putting pressure on your representative by making the exception in the law public knowledge. Those Pecan Plantation types might get all riled up when they learn that a mother can do anything she wants to her unborn child and not expose herself to endangering liability.

The law should contain some language limiting the mother's rights to some medically sanctioned procedure.

Maybe there are those who disagree with me, but I think a slow abortion by narcotic use should not be protected by the emanations and penumbras of privacy.

I have been filing delivery to a minor charges. H&S code 481.122 a 2nd degree felony. I have had some success. Of the 20 + cases filed I have obtained about 12 pleas so far. FYI: 2 of the cases are currently on appeal. The briefs have been submitted but oral arguments have not yet been set. The theory I have used is that Texas recognizes a fetus as a legal entity (See Civil Practice & Remdies Code 71.001(4) and Penal Code 1.07(a)(26). The Health & Safety Code defines a person "as an individual, corporation, . . . or any other legal entity." 481.002(8) Therefore, when the mother ingested drugs she tranfered them to the "person" within her (the other legal entity) The ACLU, NOW and others have lined up against us and John Bradley, strongly disagrees our interpretation. I concede that it was not the legislature's intent to allow this type of prosecution but, in my opinion and that of at least 5 district judges, it is a fair reading of the statutes. I don't the appeals court gets to the legislative intent issue because they have not really argued that the statute is vague. Bad drafting is not for the courts to fix for example was it the legislature's intent for us to file capital murder on a doctor for a later term abortion on a juvenile come September 1? If you would like the briefs filed in the matter to make up your own mind let me know. Good Luck, the kids need some kind of protection.

I don't see why you couldn't file on the mother for a simple PCS case. Obviously, at some period during the statute of limitations she possessed the drugs that she used, otherwise she would not have ingested them in the first place and the baby would be fine. While we're all used to having the dope in hand to offer into evidence, I don't see why that's necessary when you can, presumably, corroborate the particulars of the drugs that were possessed/used with your bloodwork. I would urge you to hurry with a search warrant and seize the blood from the baby and from mom before they are destroyed by the hospital. They typically dispose of blood and urine in 7 - 14 days.

I think your biggest issue is going to be venue. Where was she when she used the dope? You'll want to get some kind of timeline, both for how recently the dope got to the baby (if the doctors can do that) and where mom was. Also, obviously, you'll have to go with PCS under a gram, since you don't know how much mom ingested.

Good luck!

If there are methamphetamine metabolites in her blood at the time she is in the hospital having her blood drawn, is she in possession of methamphetamine right then? The hospital, within your jurisdiction, can show the approximate time of the blood draw.

DPS has excellent material on DWI - meth. Within those articles that they are happy to provide, are discussions regarding the intoxicating effects of methamphetamine metabolites. Use a retrograde analysis of sorts on the metabolism of methamphetamine to show the mother used meth or was still under the influence of the meth possessed within her circulatory system at the time she was in the hospital?

Specifically: Methamphetamine - Effects on Human Performance and Behavior by B.K.Logan AND Methamphetamine and Driving Impairment, same author published in the Journal of Forensic Sciences, May 1996.

Penal Code: Section 22.12. APPLICABILITY TO CERTAIN CONDUCT.
This chapter does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is: (1) committed by the mother of the unborn child.

How do you get past this proviso? I do think the appellate courts will get to the legislative intent, since the whole argument hinges on the applicability of the new definition of legislative intent.

I'd love to see the briefs. Could you email?

In Lamb County, we have filed on two mothers for Delivery of a Controlled Substance, using the unborn child theory. 22.12 only applies to the assault type offenses in Chapter 22 of the Penal Code, not the Health and Safety Code.

Both of our cases pled out because they were scared to death of what a jury (or possibly the Judge) would assess as punishment.

I know Bradley is the Guru, but I disagree and would be willing to take it all the way up.

Good Luck... be sure to let us all know how it comes out.

May be a silly question, but even if it was allowed, how would you proceed in a case where the to be mother didn't actually know that they were pregnant? 8 mos preg - yeah she probably knows. But what if 6 weeks preg? (should also point out that I have never been nor do I think I will ever be pregnant, but...)

Climb on Rob, then as a condition of the plea bargain agreement have her list the past three or so suppliers of the meth, corroborate that they delivered to others, then indict them for manslaughter and try to get a deadly weapon finding for the meth. I'll drive over and help (as if you really need it).

quote:

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"If there are methamphetamine metabolites in her blood at the time she is in the hospital having her blood drawn, is she in possession of methamphetamine right then?" - Philip

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Wouldn't this logic lead to punishment for a state or condition of being?

I think the effects on her system are collateral to the possession.

Seems pretty obvious to me that none of these statutes were actually intended to cover the situation we are discussing. Some of them, to avoid the abortion issue, were specifically intended NOT to cover this situation. If we prosecute a mother for possession for a crack baby, are we going to start prosecuting every probationer who tests positive for possession? Don't get me wrong, I would love to see them punished but we need to take this issue on directly in the legislature and get a statute passed that is intended to cover it.

With all the talk this past Legislative Session about Technical Violations, I must vent. Most Probation Officers that I have spoken with are extremely frustrated by the classification of a positive UA as a mere technical violation because the person had to have possessed the drugs before using them, thus committing a new (even if uncharged) offense. And we get the bad rap for revoking people for ONLY "technical" violations.

I'm not talking about revoking probation for a dirty UA. I'm talking about initiating an entirely new criminal case that would require an investigation, indictment, etc. Are you seriously suggesting that we should indict every probationer for possession of a controlled substance who tests positive for a controlled substance or marijuana? If so, you've got a lot more time and resources than I do. My original point is that prosecuting the mother for possession or delivery is stretching a law to cover a situation that I do not believe it was intended to cover when the laws were passed. Again, we need a specific law that covers it and I don't know how anyone, even those of you who proceed under other laws, would argue otherwise.

Supposing one could make a successful argument in favor of a status crime like "possession in bodily fluids" ... there could be other issues:

* Who will volunteer to demonstrate for the jury that this old vial of blood or urine contains a useable quantity of drugs? Bottoms up!

* The metabolites detected by the drug screen are likely not themselves controlled substances so you've got to infer the previous existence of the actual controlled substance.

* This might be a little far fetched but, if I remember correctly from high school health class, the reason some drugs "work" at all is because they are chemically similar to compounds produced by the glands in our own bodies. Perhaps the next step in this logic is to prosecute everyone for our own hormones under some creative interpretation of the analogs act...

Tim - From a practical standpoint, you're absolutely right.

Alex -

1. The usable quantity standard applies to Marihuana. There is no such limitation on controlled substances. Your idea can be weighed on punishment not guilt/innocence.

2. Cases can be proven by circumstantial evidence. (DNA left under the fingernails doesn't prove who shot the victim, but it _is_ compelling.)

3. We're just brainstorming here. You're taking the concept to an absurd limit, and that type of logic isn't persuasive.

I live and work in the real world and understand to some degree the implications of the title of my previous post, so, no, I don't seriously think that dirty UA's should be prosecuted as a new offense. I do believe that dirty UA's should be classified as a violation between a true technical violation and a new offense violation. Also, I fully recognize and admit that my posts on this thread have little to do with the original post. As I stated, I simply used this opportunity to vent.

I think it's more than a practical problem. If a dirty UA is all you have, it's difficult to prove "care, custody, or control" based simply on the metabolic presence of a controlled substance.

Obviously, evidence of recent use can (and should) be considered in a traditional affirmative links analysis. And, I can see where a dirty UA could corroborate a guilty plea. See Wegner v. State, 828 S.W.2d 344 (Tex. App.--San Antonio 1992, no pet.). But alone it doesn't prove much. See Jackson v. State, 833 S.W.2d 220, 223 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd) (collecting cases from other states).

And yeah, this is the beating of a dead horse of a tangent.

I like that, "the beating of a dead horse of a tangent." I may use that in a speaking objection some day.