Pubdate: Tue, 27 Sep 2005 Source: Ranger, The (Riverton, WY) Copyright: 2005 The Ranger Contact: http://www.dailyranger.com/ Details: http://www.mapinc.org/media/3945 Author: Walter Cook, Staff Writer Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing) Bookmark: http://www.mapinc.org/meth.htm (Methamphetamine) 'METH MOMMY' CASE DISMISSED Judge Says State Law Doesn't Apply Ninth Judicial District Court Judge Norman Young has dismissed a case against a Lander woman charged with child endangerment for using methamphetamine while pregnant, saying no law is in place to protect a fetus from the addictive stimulant. In a written Sept. 20 decision, Young said the law the state cited in its prosecution of Michelle Ann Foust, 31, applies only to children, not the unborn. Foust could have been imprisoned for up to five years and fined up to $5,000 if she had been convicted under Wyoming Statute 6-4-405. The law, passed July 2004, states: "No person shall knowingly and willingly cause or permit any child to absorb, inhale or otherwise ingest any amount of methamphetamine." According to Lander police reports, Foust gave birth to a son on Oct. 31, 2004, at Lander Valley Medical Center, and police, responding to an anonymous tip that Foust had been using meth during her pregnancy, immediately tested her and her newborn son for the drug. Police say both tested positive. Foust was on probation at the time for prior meth use, giving police the right to test her at any time, according to Young. Foust's case hinged on the definition of "child," Young said, with her attorney, Gordon Ellis, arguing that the statute didn't apply since the alleged meth use occurred during pregnancy. Ellis said a fetus is not a child. Fremont County Attorney Ed Newell and his assistant Tim Gist argued that at the moment of birth the fetus became a child. Foust also "knowingly" used meth, they contended. "It (the statute) does apply because the child was born alive and tested positive for meth, and the only way that could have happened is through the mother," Newell said. Said Young, "This statutory language contains the word 'child,' but not the words 'fetus' or 'unborn child.' To allow the broad definition of 'child,' which the state seeks, would go against the intent of the Legislature." Young said, as argued by Ellis, when legislators wish to prohibit activity to protect a fetus, they have traditionally included in their bills the words "fetus" or "unborn child." "(Former) Rep. Bruce Hinchey (R-Casper) attempted to introduce a bill in 1996 which would have specifically proscribed Ms. Foust's conduct in this case," said Young. "Mr. Hinchey's bill would have allowed punishment of pregnant women under the child abuse statute for using controlled substances while pregnant. "Facing heavy political pressure from both pro-life and pro-choice groups, the bill was withdrawn prior to introduction, and Rep. Hinchey himself indicated that the purpose of the proposed legislation 'was to find an effective way to deal with the problems facing children born after being exposed to illegal drugs in utero.' "Rep. Hinchey's attempted introduction of such a bill clearly indicates the Legislature's belief that such conduct was not proscribed under the then-applicable statues. "For this court to construe W.S. 6-4-405 as the state suggests would be contrary to the intent of the Legislature given Rep. Hinchey's failed attempt to introduce such a bill," said Young. Newell said he knew winning the case against Foust would be challenging when he filed charges. "We stuck our toe in the water on this thing," he said. "If nothing else, it was a valuable exercise. People need to understand there's a big hole in the law that needs to be filled." Newell said Young's decision makes it clear "the ball is squarely in the Legislature's court." "The present statutory structure ties our hands," he said. Newell added that some people had concerns about how Foust's case would affect abortion rights. "I didn't see that," he said. "What I'm saying is it should be more serious for a pregnant woman to use meth than a 59-year-old oil hand. "This is such a powerfully addictive drug. They're not going to quit on their own," Newell said. "They need an incentive." Studies show that "meth babies" can suffer complications similar to fetal alcohol syndrome, which severely limits a child's mental capacity. Newell said he plans to lobby in support of an amendment to Statute 6-4-405 that would extend protections to unborn children. He added that a law providing a mandatory minimum felony sentence for anyone who knowingly sells meth to pregnant women could also help curb prenatal meth exposure. - --- MAP posted-by: Richard Lake