Tulsa Attorney BlogOklahoma Law: Life Imprisonment for Using Drugs While Pregnant?

Oklahoma Passes New Law

Video Transcribed:  Life imprisonment for using drugs while pregnant. I’m Tulsa criminal defense attorney James Wirth, and we’re talking about a new law in Oklahoma. And that became effective in September of 2020, and it essentially provides that mothers to be who use drugs or CDS, while pregnant, can be prosecuted for child neglect, receiving up to life imprisonment. But what’s interesting about this new law is, that it’s not actually a law passed by the legislature signed by the Governor.

No, it is a law that was created by the Oklahoma Court of Criminal Appeals. What happened is, in two separate cases, prosecutors in Oklahoma filed criminal charges for child neglect against an expected mother, who used drugs during pregnancy.

And in both of those cases, the defendants filed a motion to quash or made an oral motion to quash at the preliminary hearing. Now both instances, two different judges heard that and said, “No, I’m sorry, but a fetus does not qualify as a child for the child neglect statute.” And those criminal cases were thrown out.

The State appealed in both of those cases. And in one of them that went to the district judge, who also decided, “No, I’m sorry that does not qualify. You cannot prosecute a mother for abusing a child when it’s a fetus, during pregnancy.”

However, both those cases wound up on appeal from the State, with the Oklahoma Court of Criminal Appeals and the Oklahoma Court of Criminal Appeals said, “No, lower judges, you got it wrong. We, as of today are interpreting that to allow a fetus to be the victim of child neglect under Oklahoma statutes. And now, those moms, potential moms need to go back to the trial court to receive potential conviction and sentenced up to life imprisonment.”

So, that is a bit concerning to me because I think that it should not be the Oklahoma Court of Criminal Appeals that is making these new laws. It should be the legislature and the Governor that signs off on those, to make that determination because ultimately, the crime of child neglect has been around in Oklahoma for a very, very, very long time.

And never has a mother been able to be prosecuted for child neglect for using drugs during pregnancy. And obviously, we don’t want that behavior to happen, but we also don’t want babies not to have mothers because they’re locked up. There’s got to be some of them there means to do that.

Or if we do, as a public policy, believe that it doesn’t need to be incarceration, jail time, up to life imprisonment, prosecution for mothers that do that, let’s go through the proper channels and let’s have a vote on that in the legislature. And let’s have the Governor decide whether to sign off on that or not.

But for the Oklahoma Court of Criminal Appeals to interpret that new crime, by saying that a fetus qualifies as a child under the child abuse and neglect statutes, I think is highly improper.

And part of that goes to this policy, an old policy regarding criminal law, the Rule of Leonetti, and essentially what that says is that, if there’s any ambiguity in the statute, if there’s anything unclear in the statute, that that needs to be interpreted in favor of the defendant, not the State. And that comes from this understanding that you hear often, which is that ignorance of the law is no excuse. So you don’t have to know something’s illegal in order to be prosecuted for it.

But part of the great bargain in allowing this ignorance of the law being no excuse is that the law has to be clear and it has to be unambiguous. And it has to be possible for anybody to review the law, and know what is illegal and not illegal.

And that’s completely thrown out, if the Oklahoma Court of Criminal Appeals can decide, after decades and decades of child neglect statutes being around, that now suddenly an expectant mother can be prosecuted for child neglect based on using drugs while pregnant. Because it’s unfortunate that a lot of people out there have a drug addiction. It’s unfortunate that anybody is using drugs while pregnant, but it’s a fact that has gone on for a very long time without prosecution.

And now suddenly, to allow a prosecution because the Oklahoma Court of Criminal Appeals thinks it should be, I think is problematic, and I think it should be further challenged. But at this point, that’s the law of the land as of September of this year, when we had two opinions come out from the Oklahoma Court of Criminal Appeals. That is illegal, it is child neglect, and it can be prosecuted for up to life imprisonment upon a finding of guilt.

And it raises other issues as well, because it’s not just, I mean, if a mother were to give a baby a cigarette and have the baby smoke it, that’s obviously child neglect. But now that a fetus is determined to be a child, under the statute, a mom smoking while pregnant also could be child neglect. If a mother gave their baby, or their toddler, their child, alcohol to drink, that would clearly be child neglect.

But now, for an expectant mother to have any amount of alcohol, is that also child neglect under the statute? Do we have prosecutors that now get to pick and choose who gets prosecuted? Because the child neglect statute is now broad enough that they can do that. Those are the concerns as a criminal defense attorney and as somewhat of more of a libertarian mind frame, as regarding these things happening.

So, if you find yourself in these circumstances though, and have a question about what’s illegal or legal, are facing prosecution for various things, you’re going to want to talk to an attorney about your specific circumstances. Talk to an Oklahoma attorney. My office, you can go to makelaweasy.com.

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