If you're pregnant, just gave birth, or are nursing, a drug charge isn't just a drug charge anymore. In many states, you're also going to be charged with crimes like child endangerment or assault. This is what you should know about how the law is being used when it comes to pregnancy and drugs.
The laws (and enforcement policies) vary widely according to where you live.
How likely you are to be prosecuted (and how stiff the punishment can be if you are convicted) depends largely on where you are. In some states, there are specific laws designed to target pregnant women who use drugs. In other cases, prosecutors are using broader, non-specific drug laws in creative ways to accomplish the same objectives.
In Alabama, there's a specific law that allows pregnant women and new mothers to be prosecuted for the "chemical endangerment" of their children if either they or their newborns test positive for drugs. One of the harshest in the nation, it allows prosecutors to seek up to 10 years even if the baby's drug test is clean. If the baby does have drugs in his or her system, the penalty starts at 10 years and goes up to 20.
Enforcement, however, is spotty. Studies show that enforcement in big cities (like Birmingham) is low (2 cases in 9 years) while women in smaller areas and rural counties routinely face arrest, prohibitively high bail amounts, the loss of their children, and jail time.
Other states, like Texas, charge pregnant women who use drugs with felonies like "delivering a controlled substance to a minor." That can come with a punishment of up to 20 years in prison. In states like Tennessee, a pregnant woman could be charged with assault on a minor for the same actions. In all these cases, the drug charge itself is minor compared to all the other charges that come with it.
What can you do to protect yourself against harsh prosecution under these laws?
The only real way to keep from being prosecuted is to avoid using any drugs while you are pregnant -- even something as small as a sedative like Valium -- unless they are legally prescribed to you. Keep in mind that even one failed drug test after you use a drug that isn't legal (or legally prescribed to you) can be used as justification for removing your children from your home and arresting you.
Another thing to be wary of is drug testing that is done on the sly. Many hospitals perform drug tests routinely on pregnant mothers. While unwarranted drug testing solely for the purposes of criminal prosecution is illegal, many hospitals will slip consent forms in with other paperwork and consider testing a routine necessity. If you have any doubt about your ability to pass a drug screen, make sure that you know what you are signing.
If you're already using drugs when you find out that you are pregnant, consider talking to a lawyer so that you don't run into unforeseen problems while you quit. In some states, like Wisconsin, you can be detained under civil confinement laws for the duration of your pregnancy if you are suspected of drug abuse. Having representation before that happens could be key to maintaining your freedom.
If you've already been charged with a drug crime while pregnant, just after birth, or while nursing, don't hesitate to seek representation. Many of the laws being used to prosecute women in your situation were intended for other things. An attorney may be able to successfully challenge their use in your case, depending upon the circumstances. For any questions, visit Pollack & Ball LLC.