People v. Hardy

469 N.W.2d 50, 188 Mich. App. 305

• Court: Michigan Court of Appeals
• Decided: April 1, 1991
• Docket: Docket 128458
• Status: Published

Opinions

Murphy, J.

Defendant appeals by leave granted from a May 17, 1990, Muskegon Circuit Court order denying her motions (1) to quash the felony information charging her with delivery of less than fifty grams of a mixture containing cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), (2) to suppress the results of drug screenings performed on her and her minor child, and (3) to exclude the results of a drug screening performed on her minor child’s urine. We reverse.

Defendant was IV2. months pregnant when she gave birth to a male child on August 20, 1989. The delivery proceeded without complication, and the attending physician, Dr. Janice McDonald, noted that defendant and her baby appeared to be in good health.

Upon further examination the next day, however, Dr. Danny Mikesell observed that defendant’s baby was small for his gestational age and had a distended abdomen. He was also spitting up a fair amount and was not eating well. These physical characteristics prompted Dr. Mikesell to suspect that an infection or drug ingestion was interfering with his normal development. The doctor then ordered that a drug screening be performed on the child’s urine, the results of which indicated the presence of cocaine metabolites.¹ Defendant later admitted to police that she smoked crack — a derivative of crystallized cocaine — less than thirteen hours before giving birth.

On October 13, 1989, the Muskegon County Prosecutor filed a two-count felony complaint charging defendant with second-degree child abuse, MCL 750.136b(3); MSA 28.331(2)(3), and delivery of less than fifty grams of a mixture containing cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). The child-abuse charge arose out of allegations that defendant ingested cocaine while she was pregnant, causing serious physical harm to her minor child. Defendant was also charged with delivery of cocaine because, according to the prosecutor, once ingested the cocaine* was transmitted from defendant’s system through the umbilical cord during the period after the baby had passed through the birth canal until the umbilical cord was severed after birth.

Dr. Charles Winslow, a specialist in neonatology, testified at défendant’s preliminary examination that the time of a child’s birth is recorded when the child is external to the mother, i.e., is out of the birth canal, not when the umbilical cord is clamped or severed.² Dr. Winslow further testified that, assuming a pregnant woman ingested cocaine no more than thirteen hours before giving birth to her child, "it is highly probable that finite amount[s] of cocaine were moving through the umbilical cord in the direction of mother to baby between the time the child’s body parts were delivered and the umbilical cord [was] subsequently clamped.”

The district judge found that the evidence presented at the preliminary examination was sufficient to bind defendant over to circuit court on both the count of child abuse and the count of delivery of cocaine.

On April 11, 1990, defendant moved in circuit court to quash the felony charges and to suppress the results of the drug-screening tests. Following extensive argument, the circuit judge granted defendant’s motion with respect to the charge of second-degree child abuse. He reasoned that there was insufficient evidence that defendant’s ingestion of cocaine, while pregnant, caused serious physical harm to her child.³ However, the circuit judge denied defendant’s motions relating to the delivery of cocaine charge as well as to the admissibility of the drug-screening tests.

Defendant first contends that the circuit court committed error requiring reversal in denying her motion to quash the delivery of cocaine charge. We agree.

In reviewing the circuit court’s denial of defendant’s motion to quash, this Court must determine whether the examining magistrate abused its discretion in binding defendant over to circuit court. A reviewing court may substitute its judgment for that of an examining magistrate only where there has been such an abuse. People v Talley, 410 Mich 378, 386; 301 NW2d 809 (1981); People v Cowley, 174 Mich App 76, 79; 435 NW2d 458 (1989). We first note that our review of this issue is appropriate because defendant moved to quash the information in circuit court. Cf. People v Rashid, 154 Mich App 762, 764; 398 NW2d 525 (1986).

The primary goal of a court when interpreting statutes is to ascertain and give effect to the intent of the Legislature. A statute must be construed in light of the purpose to be accomplished by its enactment. People v Ham-Ying, 142 Mich App 831, 835; 371 NW2d 874 (1985).

It is well settled that penal statutes are strictly construed, absent a legislative statement to the contrary. People v Boscaglia, 419 Mich 556, 563; 357 NW2d 648 (1984). The Legislature has expressly provided that the provisions of the Public Health Code "shall be liberally construed for the protection of the health, safety, and welfare of the people of this state.” MCL 333.1111(2); MSA 14.15(1111)(2); Ham-Ying, supra. Nevertheless, whether strictly or liberally construed, a penal statute must be sufficiently definite and explicit to inform those who are subject to it what conduct will render them liable to its penalties. People v Dempster, 396 Mich 700, 715; 242 NW2d 381 (1976). A person is not required, at peril of life, liberty, or property, to speculate concerning the meaning of criminal statutes. Id.

Under the facts presented in this case, the application of MCL 333.7401(2)(a)(iv); MSA 14.15(7401) (2)(a)(iv) to prosecute defendant for delivery of cocaine is so tenuous that we cannot reasonably infer that the Legislature intended this application, absent unmistakable evidence of legislative intent.

We find ourselves in agreement with the Supreme Court’s statement in People v Gilbert, 414 Mich 191, 212-213; 324 NW2d 834 (1982):

A court should not place a tenuous construction on this statute to address a problem to which legislative attention is readily directed and which it can readily resolve if in its judgment it is an appropriate subject of legislation.

The Legislature is an appropriate forum to discuss public policy, as well as the complexity of prenatal drug use, its effect upon an infant, and its criminalization.

The Legislature has clearly proscribed defendant’s possession and use of cocaine, and has provided criminal penalties for such conduct. MCL 333.7403(2)(a); MSA 14.15(7403)(2)(a); MCL 333.7404(2)(a); MSA 14.15(7404)(2)(a). However, this Court is not at liberty to create a crime. We are not persuaded that a pregnant woman’s use of cocaine, which might result in the postpartum transfer of cocaine metabolites through the umbilical cord to her infant, is the type of conduct that the Legislature intended to be prosecuted under the deliVery-of-cocaine statute, thereby subjecting the woman to the possibility of up to twenty years in prison and a fine of $25,000. This, in our opinion, would not be a reasonable construction of the statute.

In view of our resolution of this issue, we need not address the remaining issues raised by defendant on appeal.

Reversed.

Neff, J., concurred.

1 Dr. Mikesell testified that cocaine metabolites are the product of cocaine after it has been broken down in the body.

2 During the preliminary examination, the parties stipulated that less than one minute had elapsed from the time the child came out of defendant’s birth canal until the umbilical cord was severed.

3 The people have not taken an appeal from the circuit court’s order dismissing the second-degree child-abuse charge.