HB420 By Representatives Ainsworth, Hill (J), Mooney, Whorton (I), Shedd, Wingo, Brown and Holmes (M) RFD Health Rd 1 15-MAR-16

SYNOPSIS: Existing law makes it a crime to knowingly, intentionally, or recklessly expose a child to a controlled substance, chemical substance, or drug paraphernalia.

This bill would clarify the term "child" to include an unborn child in utero at any stage of development regardless of viability. This bill would establish venue for prosecution for exposure in utero in the county where the child is born. This bill would create a rebuttable presumption of guilt of exposure in utero if both the mother and the child test positive for the same controlled substance not prescribed by a physician.

A BILL TO BE ENTITLED AN ACT

To amend Section 26-15-3.2, Code of Alabama 1975, to provide that the term "child" includes an unborn child; to establish venue; and to create a rebuttable presumption that the offense of exposing a child in utero to a controlled substance has occurred if both the mother and the child test positive for the same controlled substance not prescribed by a physician.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Section 26-15-3.2, Code of Alabama 1975, is amended to read as follows:

§26-15-3.2.

"(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:

"(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260. A violation under this subdivision is a Class C felony.

"(2) Violates subdivision (1) and a child suffers serious physical injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia. A violation under this subdivision is a Class B felony.

"(3) Violates subdivision (1) and the exposure, ingestion, inhalation, or contact results in the death of the child. A violation under this subdivision is a Class A felony.

"(b) The court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment.

"(c) It is an affirmative defense to a violation of this section that the controlled substance was provided by lawful prescription for the child, and that it was administered to the child in accordance with the prescription instructions provided with the controlled substance.

"(d) For purposes of this section, the term "child" includes, but is not limited to, an unborn child in utero at any stage of development regardless of viability.

"(e) Where exposure occurs in utero, venue shall lie in the county where the child is born.

"(f) A rebuttable presumption of exposure in utero in violation of this section exists if both the mother and the child test positive for the same controlled substance at the time of birth and the controlled substance was not prescribed by a licensed physician.

"(g) Any licensed physician providing medical care and treatment to a mother or child shall not be subject to any criminal liability under this section. Medical care and treatment includes, but is not limited to, prescribing, ordering, dispensing, or administering of medications and medical procedures."

Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Crimes and Offenses

Criminal Law and Procedure

Civil Procedure

Children

Unborn Children

Child Abuse

Controlled Substances

Code Amended