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F I S C A L I M P A C T R E P O R T

SPONSOR Boitano

ORIGINAL DATE

LAST UPDATED

2/1/08

HB

SHORT TITLE

Use Of Controlled Substances While Pregnant

SB 316

ANALYST Wilson

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY08

FY09

FY10 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$0.1

$0.1

Recurring General

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

Children Youth and Families (CYFD)

Corrections Department (CD)

Department of Health (DOH)

Department of Public Safety (DPS)

SUMMARY

Synopsis of Bill

Senate Bill 316

the new crime of consumption of a controlled substance while pregnant when the

person knows or should know that she is pregnant. The bill also makes it a crime to cause

another person to consume a controlled substance when the person knows or should know that

the other person is pregnant.

FISCAL IMPLICATIONS

There will be a minimal administrative cost for statewide update, distribution, and

documentation of statutory changes. Any additional fiscal impact on the judiciary will be

proportional to the enforcement of this law and commenced prosecutions. New laws,

amendments to existing laws, and new hearings have the potential to increase caseloads in the

courts, thus requiring additional resources to handle the increase.

Senate Bill 316 – Page

2

SIGNIFICANT ISSUES

The AGO provided the following:

The issue of prosecuting a woman under the Child Abuse statute, for consuming a

controlled substance while pregnant was raised in a case before the New Mexico Court of

Appeals in State v. Martinez, 139 N.M. 741, 137 P.3d 1195 (Ct. App. 2006). In that case,

the defendant was charged with felony child abuse for using cocaine during her

pregnancy. The consumption of cocaine during the pregnancy resulted in serious health

problems to the child after the child’s birth.

The relevant portion of the child abuse statute, under which the defendant was

prosecuted, stated that “abuse of a child consists of a person knowingly, intentionally or

negligently, and without justifiable cause, causing or permitting a child to be . . . placed

in a situation that may endanger the child’s life or health." The Court stated that a

“child" is defined by the legislature as “a person who is less than eighteen years of age"

and that a “person" is defined as “any human being or legal entity." The Court

determined that the legislature has not included an unborn viable fetus within the

meaning of “human being." The Court held, therefore, that the defendant could not be

prosecuted under the child abuse statute because the “Legislature did not intend for a

viable fetus to be included within the statutory definition of a child for the purposes of the

child abuse statute."

The New Mexico Supreme Court declined to review the New Mexico Court of Appeals’

decision.

CYFD notes that making the consumption of a controlled substance illegal is a growing

development in the United States, and has resulted in prosecutions of the offense at levels from

misdemeanor to felony in more than 24 states. Some states use these laws as precursors to

seizing newborn infants at the time of birth, and/or older children during or after the pregnancy.

DOH provided the following:

The New Mexico Controlled Substances Act lists schedules I through V of Controlled

Substances, which includes marijuana, cocaine and heroin, and also narcotics prescribed

by medical professionals for the control of pain and for other medical problems. Women

who use illegal drugs, or “street drugs," can have babies who are small, premature, or

have other health problems, such as birth defects. According to a 2005 government

survey, nearly 4 % of pregnant women use illicit drugs.

The Controlled Substances Act does not list alcohol or tobacco as controlled substances,

although these substances are the most commonly used substances known to have

potential for abuse and physical or psychological dependence and are known to have

negative consequences for the infant when consumed by a woman during pregnancy. As

written, SB316 does not distinguish between “street drugs" and narcotics prescribed by

physicians to pregnant women to control pain.

Policymakers have grappled with numerous ways that society can address the problem of

women’s substance abuse during pregnancy. Policies in Brief series on Substance Abuse

Senate Bill 316 – Page

3

During There are numerous ways in which states have responded to pregnant women’s’

substance abuse. No state specifically criminalizes drug use during pregnancy. However,

prosecutors have attempted to rely on a host of criminal laws already on the books to

attack prenatal substance abuse. Only the South Carolina Supreme Court has upheld such

a conviction, ruling in Whitner v State that a woman’s substance abuse late in pregnancy

constitutes criminal child abuse.

In a May 11, 2007 ruling in which the state of New Mexico argued that a pregnant

woman addicted to drugs should be sent to jail as a felony child abuser, the New Mexico

Supreme Court ruled that the state law expanding criminal child abuse laws to include

drug use by pregnant women was unconstitutional.

If SB 316 is enacted, an unintended consequence may be to discourage women who use

controlled substances illegally from seeking prenatal care. New Mexico's mandatory

child abuse reporting laws applies to physicians, thus a drug addicted mother may forego

seeking important health and social services during her pregnancy for fear of criminal

charges. Further, because the bill will subject the pregnant offender to sentencing

pursuant to 31-19-1 NMSA 1978, she will face a criminal sentence of up to one year in

jail. This brings up the separation of mother from child and research shows that parental

incarceration can negatively affect the emotional, behavioral, and psychological

development of children.

Early prenatal health care can improve birth outcomes by identifying some health

problems and by educating pregnant women on the best health habits for enhancing the

baby’s development, including the avoidance of illegal substances, tobacco, alcohol,

pesticides, and other substances.

SB316 will criminalize not only those who know they are pregnant and consume

controlled substances, but also those who “should know that she is pregnant" or those

who “should know that the other person is pregnant." This definition is problematic

because it is nearly impossible for another person to define when one should know that

she is pregnant. Many women do not know that they are pregnant until well into the

pregnancy. There is a wide variety of “regularity" to a woman’s cycle and each case will

have different facts, which may present problems in prosecuting women.

Additionally, the Controlled Substances Law already criminalizes the illegal consumption

of controlled substances.

ADMINISTRATIVE IMPLICATIONS

Normally, misdemeanor offenders are not sentenced to a CD facility. However, if a person is

convicted of several misdemeanors, and is sentenced to serve them consecutively such that his

prison sentence totals one year or more, then that person is sentenced to a CD prison. Under this

bill, it is possible that one (the same) person could be found guilty of several misdemeanor

offenses. While the number of offenders sentenced to CD for multiple misdemeanor convictions

of this new crime is likely to be small, even one such offender impacts CD. Similarly, while

most misdemeanor offenders are not supervised by CD on probation, some are. Accordingly,

this bill could cause a minimal increase in CD’s prison population and probation caseloads.

Senate Bill 316 – Page

4

CD notes

m

ore prisoners and probationers means that current staff has to work harder to provide

the same level of services to prisoners and probationers.

DW/mt