Split Oklahoma Court of Criminal Appeals affirms dismissal of criminal charge of child neglect brought against woman who used medical marijuana when pregnant

As reported in this local press piece, "women with state medical cards who use marijuana during pregnancy can’t be prosecuted for child neglect, the Oklahoma Court of Criminal Appeals ruled Thursday."   The ruling in State v. Agular, No. 2024 OK CR 18 (Okla. Ct. Crim. App. July 18, 2024) (available here), is an interesting read, and here are a few passages from the majority opinion:

The issue in this appeal is whether an expectant mother who holds a medical marijuana card and uses the drug while pregnant has exposed her unborn child to illegal drugs constituting the crime of child neglect, which in Oklahoma includes "the failure or omission to protect a child from exposure to . . . the use, possession, sale, or manufacture of illegal drugs." 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) (emphasis added).  The Information charges Aguilar with a single felony count of child neglect by "exposing J.W.B. to controlled dangerous substances in utero, specifically Marijuana." (Emphasis added). Thus, the charging document accuses Aguilar of a crime which does not exist, i.e., child neglect by exposure to "controlled dangerous substances" as opposed to exposure to "illegal drugs[.]"  This is not a matter of semantics, and although this charging error does not determine the outcome of this appeal, the apparent confusion in terminology and definitions which led to that error is central to understanding how to properly resolve this case.

The terms "controlled dangerous substance" and "illegal drugs" are not synonymous; the former includes hundreds of prescription drugs which, like marijuana, are lawful to possess only with a prescription or other legal authorization.  The term "controlled dangerous substance" is defined in 63 O.S.Supp.2019, § 2-101(8) as any drug listed in any of the Schedules I through V of the Uniform Controlled Substances Act.  However, neither that Act nor any other provision of Oklahoma law defines the term "illegal drug", so we must ascertain the meaning of that term, and specifically, whether the marijuana use in this case is included within it so as to constitute child neglect....

We find that the most logical reading of 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) is that "illegal drugs" means those drugs whose possession or use violated the law at the time of that possession or use. Hence, an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect.  See State v. Green, 2020 OK CR 18, 474 P.3d 886.  Conversely, under that definition, an expectant mother's licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.

One of the two dissents includes this passage providing a different view of this matter:

The child neglect statutes were undoubtedly enacted to protect children from harm. Marijuana is still an illegal Schedule I drug except for a person who holds a medical marijuana license. In this case, the baby's exposure to Appellee's use and possession of marijuana, a Schedule I drug, is illegal because the baby has no medical marijuana license. It is not the mother's use or possession of marijuana that is criminalized by the child neglect statute, but her exposure of her unborn child to the use or possession of marijuana, an illegal drug for the child.