April 5, 2006
Case Law Development: New Mexico Appeals Court Says Cocaine Use During Pregnancy Isn't Child Abuse
New Mexico's Court of Appeals ruled Monday that the state cannot prosecute a mother for child abuse because she used cocaine during her pregnancy. The court justified its ruling on the basis that the New Mexico Legislature could not have intended for a viable fetus to be considered a human being in the context of the child abuse statute. The woman told authorities she used crack cocaine and alcohol prior to the birth of her daughter who had high levels of cocaine in her.
Other jurisdictions with similar child abuse statutes have concluded that they do not apply to an unborn fetus. See People v. Morabito, 580 N.Y.S.2d 843, 846-47 (N.Y. City Ct. 1992) (holding that mother could not be charged with criminal endangering the welfare of her child based upon prenatal acts of smoking cocaine); State v. Gray, 584 N.E.2d 710, 713 (Ohio 1992) (holding that mother may not be prosecuted criminally for child endangerment for prenatal substance abuse); Reinesto v. Superior Court of Ariz., 894 P.2d 733, 737 (Ariz. Ct. App. 1995) (holding that mother could not be prosecuted under child abuse statute for prenatal use of heroin); State v. Dunn, 916 P.2d 952, 956 (Wash. Ct. App. 1996) (dismissing charge of second degree criminal mistreatment of a child, holding that a fetus was not a child within the meaning of criminal mistreatment statute where mother continued to ingest cocaine while pregnant); State v. Deborah J.Z., 596 N.W.2d 490, 496 (Wis. Ct. App. 1999) (holding that fetus was not a human being for purposes of attempted first-degree intentional homicide and first-degree reckless injury statutes).An appeal to the state Supreme Court is expected. Source. AP, abqtrib.com. For the complete story, please click here (last visited April 5, 2006, reo). Download New Mexico child abuse ruling_in_pdf_format here.pdf reo.
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