OKLAHOMA CITY – A Kay County woman cannot be tried for child neglect for using medical marijuana with a license while pregnant, the state’s Court of Criminal Appeals ruled.
Thursday’s 3-2 decision was written by Presiding Judge Scott Rowland, who suggested the Legislature address the issue.
Amanda Camp Aguilar, 34, was charged with one count of felony child neglect in Kay County for exposing her unborn child to controlled dangerous substances, marijuana, in utero.
Aguilar filed a motion to quash or toss out the charge. District Judge Lee Turner agreed. The state appealed.
Drugs listed in schedules II through V have a potential for abuse, but some have medical value and can be prescribed, the opinion said. Schedule I drugs have a potential for abuse, but no legitimate medical value and historically could not be prescribed, the opinion said.
“This clear distinction between Schedule I versus all other Schedules was blurred when Oklahoma enacted its medical marijuana laws, leaving marijuana in Schedule I but creating a licensing procedure authorizing lawful possession and use,” the opinion said.
While every other Schedule I drug is likely illegal, medical marijuana may or may not be, depending on whether the user has a license, the opinion said.
“It is undisputed that Aguilar had one,” the opinion said.
A pregnant woman who exposes her unborn child to methamphetamine could be convicted of child neglect, the opinion said.
But an expectant mother’s licensed possession and use of medical marijuana would not trigger an automatic finding of neglect because as to her, marijuana is not an illegal drug, the opinion said.
“For us to find that Aguilar’s use, fully authorized by her medical marijuana card, became illegal due to her pregnancy, would require us to rewrite the statutes in a way we simply do not think is appropriate for courts to do,” the opinion said.
In his dissent, Judge Gary Lumpkin said the majority’s “analysis is devoid of common sense as the drug is still an illegal and unlawful drug. Only Appellee had a permit to use it, not her baby.”
Judge David B. Lewis also dissented.
“Appellee is not charged with using marijuana under her state-issued license, which is no crime; but rather with conduct exceeding the bounds of her personal license by exposing an unborn child to marijuana,” Lewis wrote.
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