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. 
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MAP posted-by: Richard Lake