Charges hinge on children's drug exposure

PROVO — Just because the mother of three young children is caught using meth in her home doesn't mean prosecutors can immediately charge her with child endangerment.

"We have to prove actual exposure," says Utah County prosecutor Dave Sturgill. "We can have people with 100 pounds of marijuana in the basement and a child upstairs, and if there hasn't been actual exposure, then we're out of luck."

Exposure would mean the child had touched, consumed or inhaled the drug.

"Our statute should be drafted in such a way that children and drugs don't mix," Sturgill said. "I don't care if they're not actually exposed. If there's drugs inside of a house, there should be a problem. I don't think we do enough to protect our kids."

Prosecutors can add a possession or drug-distribution charge and the enhancement of "drug-free zone" wording if there are children around, but they can't add an additional third-degree felony of child endangerment unless the adult "knowingly 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," according to Utah Code for the third-degree felony.

Also, based on the Utah statute, prosecutors also are prevented from charging a pregnant, drug-abusing woman with child endangerment.

In an attempt to prove exposure during raids, the Utah County Major Crimes Task Force often uses an ion sensor, which allows them to take swabs of children's skin, hair, toys and clothes and run them through a quick machine that will alert them to trace amounts of drugs, Sturgill said.

However, parents always quick to defend themselves by saying they never knew their children were being affected, Sturgill said.

Often, when a mom and dad are being led in handcuffs to the back of a patrol car at 2 a.m., they'll try to pass the blame, said Bill Duncan, a Utah Division of Child and Family Services supervisor.

In one case, Duncan said the parent told officials that the children were in an adjoining room to the meth lab — but the door was closed. Another father thought shutting the bathroom door and smoking meth with the fan on would keep the drug away from his kids.

Although Sturgill said removing the wording "knowingly or intentionally" from the law would make it easier for him to prosecute, it would also eliminate the necessary element of intent, critical to any alleged crime, said defense attorney Chris VanCampen.

Rather than deleting those phrases, adding the word "reckless" to the child endangerment clause would add more protection for children, without creating a vague statute difficult to defend clients against, VanCampen said.

"That would not take out the element of intent but add a catch-all for the prosecution," he said. "I wouldn't have any trouble with that. It's just something that protects children."

Because, VanCampen added, it's still illegal for parents to possess controlled substances, even if they are safely out of children's grasp.

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