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Affirmed Landmark Case Leads to Additional Arrests & Lawmakers Seeking to Clarify the Law

BY MELANIE BUCK –

On the heels of a landmark decision made by the Arkansas Court of Appeals issued last week to keep Melissa McCann-Arms in prison for taking drugs while pregnant, Prosecuting Attorney Andy Riner is bringing another case to Polk County courts by way of Jessica M. Fox.

Fox was arrested on Monday, February 2, 2015 for two counts of Introduction of Controlled Substance into the Body of Another Person.  Fox gave birth to a child on October 17, 2013, which tested positive for four different drugs: methamphetamine, amphetamine, opiates, and Oxycodone. Fox tested positive for the same drugs with exception to opiates. The arrest was delayed pending the appellate courts opinion in the McCann-Arms case.

The first count charged constitutes a Class Y Felony due to the drug found in the infant’s system being Oxycodone, a narcotic. The second count is a Class B Felony, having found methamphetamine, a non-narcotic, in the infant’s system.

Fox told Investigator Elena Cannon that she had not done the drugs but had stayed at a residence where drugs were being used and that she did not know how they got into her system. She did admit during the interview that she had used methamphetamine before she knew she was pregnant and had also used pain pills during pregnancy for pain in her back.

With appellate court Judge Phillip Whiteaker affirming the January 2014 decision of a Polk County jury in the McCann-Arms case and their subsequent 20-year sentence, the road is now paved for prosecutors to pursue what many claim is becoming an all too common occurrence. And it will be met with opposition from the American Medical Association and the American Academy of Pediatrics who argue that laws that criminalize drug addiction in pregnant women steer them from pursuing prenatal care or drug rehabilitation.

Whiteaker’s opinion also concurred with Riner’s argument that an unborn child is considered a ‘person.’ As of now, the law is unclear about the definition of ‘person’ and advocates of the law view an unborn fetus to not qualify as a ‘person.’ Whiteaker and Riner have both called upon legislators for clarity.

A clarity that one Republican state senator plans to pursue. Senator Missy Irvin from Mountain View has publicly committed to sponsoring legislation that would amend the statute to apply to unborn children.  While Whiteaker did concur with Riner that it did include unborn children, he affirmed the conviction based on the fact that McCann-Arms’ fluids continued to flow through the umbilical cord to the infant for a period after the child was born.

McCann-Arms’ attorney Randy Rainwater argued in the appeal that there is no reference to unborn children in the statute and that Arkansas law does not define an unborn child as a ‘person’ except in cases of homicide. Riner said there is an easy fix to the law by changing the language to state that ‘person’ includes an ‘unborn child in utero at any stage of development.’

The Fox case is set for jury trial in late spring of 2015. She is represented by Attorney Randy Rainwater.

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One comment

  1. There need to be clear standards of what drugs and in what concentrations constitute a criminal offense under law. otherwise this kind of case will be filed strictly on the judgment – and priorities – of various local prosecutors. The Appellate Court’s ruling justifying the charges in this case are a serious reach and will probably be overturned by the Federal judiciary. Even granting good intentions, handing out 20-year prison sentences on the discretion of tea party prosecutors is not something that makes me feel either safe or virtuous.

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