Monday, January 23, 2006


State v. Nieberger, 2006 UT App 5
State v. Draper, 2006 UT App 6

Both cases involve challenges under the child endangerment statute (76-5-112.5). Nieberger upholds the constitutionality of the statute against a vagueness challenge and affirms the trial courts bindover order. Draper reverses the trial court’s bindover order.

Both Nieberger and Draper are mothers who were busted for exposing their children to drugs and paraphernalia, although in different ways. Nieberger had drugs and drug paraphernalia scattered all over the house. Draper smoked pot and later breast-fed her six-month-old child.

The court of appeals held that the term “exposed to” in the child endangerment statute was not vague as applied to Nieberger because the common and ordinary meaning of the word exposed includes “to show publicly, to display.” Thus, by leaving drugs and paraphernalia around the house, Nieberger “exposed” her children to drugs.

Draper, on the other hand, did not necessarily expose her child to drugs. The court explained that feeding your child drug-contaminated milk would constitute exposure under the statute. But the state failed to present any expert testimony that marijuana passes through the mother’s breast milk to the child.

For anyone who has nursed a child (or for men, had a child that was nursed), you know that pretty much whatever the mother eats passes through the milk to the child (think Napoleon Dynamite: “This tastes like the cow got into an onion patch.”). But the court decided that “the question as to whether marijuana was actually present in Draper’s breast milk when she nursed her infant appears to be of sufficient complexity as to be beyond the realm of common experience.” So it reversed Draper’s bindover because “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 mild would be contaminated with a controlled substance or merely the metabolite of a controlled substance.”


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