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Defendant Charged with Marijuana Possession


Recently, a good deal of attention has been given to the legalization or decriminalization of marijuana. Some states have legalized medicinal marijuana use. Some states have decriminalized the private use or possession of less than one ounce. In New York City, it is still illegal to use, possess, or purchase marijuana. While drug possession is still a crime, other less obvious issues surrounding marijuana are being played out in courts all over the United States.

A New York Criminal Lawyer says that people believe that is they are good parents and take good care of their children that no one can take them away. What they do not realize is that sometimes, even good parents are scrutinized by a judicial system that has the power to remove their children from them. This is a terrifying situation. No one wants to believe that the state would come in and take away their children. That is something that happens to other people, bad people, not to the average parent. That image of people who have to fight the system to keep their children is not accurate. Sometimes, there are people who are lousy parents. People can be cruel and people can be clueless when it comes to the welfare of their children. The laws of the state of New York clearly detail that if a parent misuses alcohol or drugs to the extent that it places their children in in actual or imminent danger of impairment to the physical, mental, or emotional condition of the child. The Family Court Act § 1046 also states that there must be a showing of a threshold of serious and ongoing substance abuse. The object of this law is to protect children from serious harm or potential harm. It was not designed to punish parents for behaving in an undesirable manner.

It is possible, that a parent who uses marijuana only once can have their children removed. A New York Criminal Lawyer said it seems unconscionable that the state would take away a person’s children for testing positive for marijuana on one occasion, but it has happened. In fact, one such case was decided in Kings County Family Court in Kings County, New York on January 26, 2012. The incident surrounded the petition from the Administration for Children’s Services to find a mother guilty of child neglect because on the date of her child’s birth, she and the child tested positive for marijuana. The toxicology report was not specific as to when the marijuana had been consumed, if the mother had endangered her child by consuming it, or if the mother had even become intoxicated at the time that the drug entered her body. Interestingly enough, this case brings up the question of what would happen if the drug had entered the mother’s body through second hand smoke. For instance, the mother was passing through a closed in area where other people were smoking marijuana. It could conceivably enter her body in that fashion. She may or may not feel any effects of the drug, but she would probably still test positive on a toxicology report for the drug. That question will have to be answered in a different court case.

The case that came to court in January of 2012, involved a mother who delivered a healthy, full-term infant of greater than average weight. The routine toxicology report showed that the mother and child tested positive for marijuana. ACS responded to the case by charging the mother with child neglect. They interviewed her and asked when and how she had gotten marijuana in her system. The mother stated that she has never used drugs to the point of intoxication. She stated that she consumed a small amount of marijuana orally in the form of tea during prayer as a religious practice. She stated that it has never had an intoxicating effect on her and that she has never smoked it. She stated that it has never affected her children or her care of them. She further pointed out by statements made by doctors that there was no evidence that her consumption of marijuana two weeks before the delivery of the baby had caused any ill effects on the child at all. The doctors pointed out that alcohol or cigarettes during pregnancy were both more damaging than the consumption of the marijuana.

ACS interviewed her five other children. They determined that the mother, grandmother, and the children had recently moved to New York from Washington, DC. The home was tidy and well kept. The children had adequate housing and rooms to themselves. All of the children were well adjusted and healthy. Each of the children were interviewed and stated that they had never seen their mother drink alcohol or use any drugs. They stated that their mother never struck them. They were doing well in school and seemed happy.

Still, ACS brought charges against this mother. The petition claimed that she neglected the children by using marijuana and that the children had not been immediately enrolled in school in New York after the family moved there. There were five petitions of neglect. In court, ACS was forced to withdraw one of the neglect charges immediately since the sixteen-year-old daughter that was named in the allegation did not even live with the mother. She was still living with her father in Washington, DC.

ACS was also required to remove their neglect petitions that were based on the allegation that the children had not been enrolled in school in a timely fashion. The mother produced the school registration documents that proved that the children had been enrolled in school as soon as possible after their move. The mother then produced a very credible expert on the effects of drugs on the physiology of a person. In fact, this expert witness was a doctor of neuropsychopharmacology in the Psychiatry Department of Columbia University. He had even completed his Postdoctoral Fellowship in Substance Abuse at the Department of Psychiatry at Yale University and at the University of California. He is a tenured Associate Professor in Psychiatry at Columbia University and the Director of Undergraduate Studies for the Department of Psychology. This expert testified that the effects of marijuana when it is consumed as opposed to smoked are fairly different. Smoking intensifies the chemical reaction in the body that causes the THC to become psychoactive. By consuming the marijuana in the form of a tea, it is not metabolized until it reaches the small intestines where it may or may not cause a less intense affect. There is no way to determine from the toxicology report if the woman consumed enough to make her intoxicated in any way.

Certainly the testimony of the children showed that they were not harmed in any way by the mother consuming marijuana to heighten her prayers. The mother is a certified ordained minister in Washington, DC. Although, the court documents do not mention her religious preference, there are some religions in the world that condone the use of marijuana during prayer. In this case, it becomes an issue of if the children were harmed since ACS has chosen to prefer charges of neglect against a woman with no other evidence of any kind of abuse except that she and her infant tested positive for marijuana on one occasion.

Thankfully, in this case, the legal aid society acquired the services of an excellent expert witness and the courts were compelled to reject the case in its entirety. Whether you have been charged with sex crimes, a drug offense or domestic violence, it important to seek legal guidance. Stephen Bilkis & Associates Domestic Violence Lawyers are familiar with handling cases in family court; we can offer the client the representation that they need. We have offices throughout New York and the Metropolitan area. Being able to defend the client’s interest is important to us. We can negotiate on your behalf in order to obtain a positive outcome.

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