Pubdate: Sat, 27 Oct 2007
Source: Deseret Morning News (Salt Lake City, UT)
Copyright: 2007 Deseret News Publishing Corp.
Contact:  http://www.desnews.com/
Details: http://www.mapinc.org/media/124
Author: Geoffrey Fattah, Deseret Morning News

JUSTICES SAY DRUGS IN HOME MAY NOT ENDANGER KIDS

The Utah Supreme Court has ruled a child must have "reasonable" access
to drugs in order for a parent to be charged under the
child-endangerment statute. Prosecutors say the ruling narrows their
ability to charge drug-dealing parents under the statute, but they
have already worked on a remedy to amend the law during the next
legislative session.

The ruling stems from two separate drug cases in which two women were
arrested on drug and drug paraphernalia possession charges while
children were in the homes. Both defendants were charged with child
endangerment.

In one case, parole officers visited a home to conduct an inspection.
During the inspection, officers noticed that four children were in the
home, a 2-year-old asleep on a sofa and three in an upstairs bedroom,
including an infant. Upon entering the adults' bedroom, they noticed
an open purse sitting on top of a dresser with a plastic bag
containing what appeared to be drugs. The parolee's girlfriend claimed
that the bag belonged to her, and she was arrested along with her
boyfriend. Further investigation turned up another bag with two rocks
of cocaine.

In a second case, Salt Lake County sheriff's deputies searched a
woman's home on a tip there was a meth lab. When deputies arrived, the
woman appeared to be moving out of the home. One deputy testified that
he "could smell the odor of a methamphetamine lab from the curb." In a
detached garage officers found items indicating a meth lab. In the
home's basement, officers found a glass pipe wrapped in tissue paper
on a closet shelf. In another downstairs bedroom, methamphetamine was
found. During the investigation, the woman's 13-year-old daughter was
in the living room.

In both cases, the women were charged with possession of either drugs
or drug paraphernalia and child endangerment. Both then argued in
court that the state failed to establish enough probable cause. The
court, however, bound them over on the charges.

In Friday's ruling, the justices said that a case needs more than just
the presence of drugs in a home in order for child endangerment to
apply. The law "requires a real, physical risk of harm to a child; the
child must have the reasonable capacity to access the substance or
paraphernalia or to be subject to its harmful effects, such as by
inhalation," the justices wrote in a unanimous opinion.

However, in a footnote, the justices said that a child sleeping in a
residence where a meth lab was operating "would be exposed under the
terms of the statute because the child will experience harmful effects
from the substance," similar to exposure to a "contagious disease."

Assistant Utah Attorney General Laura Dupaix said the ruling limits
the ability of prosecutors to use the law against drug-dealing parents.

"I think the opinion does narrow the statute from what we believed the
statute to cover; however, I believe the opinion still allows the
state to prosecute parents who have their illegal substances, or meth
labs, in a place where children can still access it," Dupaix said.

The Supreme Court has remanded both cases back to the district court
to determine under the recent ruling if the women should be bound over
for trial on the charges.

Dupaix said draft legislation is expected to be introduced during the
next session of the Utah Legislature to amend the law, making the
ruling moot.
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MAP posted-by: Derek