BILL NUMBER: AB 2614	INTRODUCED
	BILL TEXT


INTRODUCED BY  Assembly Member Hawkins

                        FEBRUARY 21, 1996

   An act to add Chapter 2.3 (commencing with Section 273.50) to
Title 9 of Part 1 of the Penal Code, relating to crimes.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2614, as introduced, Hawkins.  Crime:  prenatal child neglect.
   Existing law proscribing child abuse does not proscribe substance
abuse during pregnancy.
   This bill would create the crime of prenatal child neglect and
would provide that, except as specified, a person is guilty of
prenatal child neglect, punishable as a misdemeanor or felony as
specified, if the person knowingly uses a specified controlled
substance at a time when the person knows or reasonably should know
that she is pregnant and the use of that controlled substance results
in the child with whom the woman is pregnant being drug-exposed at
birth, as defined.
   The bill would provide that specified defendants may, in lieu of
imprisonment and as a condition of probation, request to participate
in specified programs.  The bill would impose a state-mandated local
program upon local governments by creating a new crime and by
imposing new duties on probation officers.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
   This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Chapter 2.3 (commencing with Section 273.50) is added
to Title 9 of Part 1 of the Penal Code, to read:

      CHAPTER 2.3.  PRENATAL CHILD NEGLECT

   273.50.  (a) A person is guilty of prenatal child neglect if (1)
the person knowingly uses a controlled substance classified in
Section 11054 or 11055 of the Health and Safety Code at a time when
the person knows or reasonably should know that she is pregnant and
(2) the use of that controlled substance results in the child with
whom the woman is pregnant being drug-exposed at birth.
   (b) (1) The punishment for a violation of this section is as
follows:
   (A) Any person who is convicted of, or pleads guilty to, prenatal
child neglect for the first time and the violation has not resulted
in "serious physical harm" to the child involved is guilty of a
misdemeanor and is subject to imprisonment in the county jail for not
more than six months.
   (B) Any person who is convicted of, or pleads guilty to, prenatal
child neglect for the first time and the violation has resulted in
"serious physical harm" to the child involved is guilty of a felony
and is subject to imprisonment in the state prison for 18 months, 3,
or 5 years.
   (C) Any person who is convicted of, or pleads guilty to, prenatal
child neglect for a second or subsequent time and the violation has
not resulted in "serious physical harm" to the child involved is
guilty of a felony and is subject to imprisonment in the state prison
for 18 months, 3, or 5 years.
   (D) Any person who is convicted of, or pleads guilty to, prenatal
child neglect for a second or subsequent time and the violation has
resulted in "serious physical harm" to the child involved is guilty
of a felony and is subject to imprisonment in the state prison for 3,
7, or 10 years.
   (2) Upon the request of a person described in subparagraph (A) or
(C) of paragraph (1), the court, in lieu of imposing a term of
imprisonment, may suspend the execution of the term and instead place
that person on probation under at least one of the following terms
of probation:
   (A) Participation in, and successful completion of, a drug
treatment program and after-care program designated by the probation
officer, including, but not limited to, any program consistent with
the intent of this chapter that has been established under Division
9.7 (commencing with Section 10900) of the Health and Safety Code
(Perinatal Substance Abuse), Chapter 2 (commencing with Section
11757.50) of Part 1 of Division 10.5 of the Health and Safety Code
(Alcohol and Drug Affected Mothers and Infants Act of 1990), or
Chapter 4.8 (commencing with Section 1174) of Title 7 of Part 2 of
this code (Pregnant and Parenting Women's Alternative Sentencing
Program Act).
   (B) Participation in a contraceptive program designated by the
probation officer.  Under the contraceptive program, the defendant
shall be required to submit to medical procedures for the
implantation of a hormonal implantation birth control device that is
approved by the federal Food and Drug Administration.  If the
hormonal implantation birth control device is not medically indicated
or recommended for the defendant, the defendant shall participate in
another specified program of contraception that is medically
indicated or recommended for her.  If the defendant demonstrates to
the sentencing court that her sincerely held religious beliefs and
practices counsel against the use of contraception, the defendant
shall participate in programs, designated by the probation officer,
that are designed to improve parenting skills and prevent the use of
alcohol or controlled substances, including, but not limited to, any
program consistent with the intent of this chapter that has been
established under Division 9.7 (commencing with Section 10900) of the
Health and Safety Code (Perinatal Substance Abuse), Chapter 2
(commencing with Section 11757.50) of Part 1 of Division 10.5 of the
Health and Safety Code (Alcohol and Drug Affected Mothers and Infants
Act of 1990), or Chapter 4.8 (commencing with Section 1174) of Title
7 of Part 2 of this code (Pregnant and Parenting Women's Alternative
Sentencing Program Act).
   (C) Drug and alcohol testing.  Consistent with Section 1203.1ab,
the defendant shall be required to provide her probation officer with
a sample of her blood, breath, or urine whenever requested in order
to detect the presence of alcohol or any controlled substance, except
if the defendant becomes pregnant during the period of probation, in
which case the defendant shall provide her probation officer with a
sample of her blood, breath, or urine at least once a month while she
remains pregnant.
   (3) Upon the request of a person described in subparagraph (B) or
(D) of paragraph (1), the court, in lieu of imposing a term of
imprisonment, may suspend the execution of the term and instead place
that person on probation under all of the following terms of
probation:
   (A) Participation in, and successful completion of, a drug
treatment program and after-care program designated by the probation
officer, including, but not limited to, any program consistent with
the intent of this chapter that has been established under Division
9.7 (commencing with Section 10900) of the Health and Safety Code
(Perinatal Substance Abuse), Chapter 2 (commencing with Section
11757.50) of Part 1 of Division 10.5 of the Health and Safety Code
(Alcohol and Drug Affected Mothers and Infants Act of 1990), or
Chapter 4.8 (commencing with Section 1174) of Title 7 of Part 2 of
this code (Pregnant and Parenting Women's Alternative Sentencing
Program Act), unless it appears to the court that the defendant is
not amenable to treatment and the court states on the record that the
defendant would not significantly benefit from the treatment or
program.
   (B) Participation in a contraceptive program designated by the
probation officer and in drug and alcohol testing in accordance with
Section 1203.1ab.
   (4) The defendant shall be responsible for all costs associated
with her participation in any of the probation programs specified in
this subdivision, in accordance with Section 1203.1b.
   (c) For the purposes of this section, the following terms have the
following meanings:
   (1) "Drug-exposed at birth" means that a child has been exposed
prior to birth to a controlled substance classified in Section 11054
or 11055 of the Health and Safety Code, as evidenced by one or more
of the following conditions:
   (A) The child has symptoms at birth of withdrawal from a
controlled substance classified in Section 11054 or 11055 of the
Health and Safety Code.
   (B) The results of tests of the child's blood, urine, stool, hair,
chromosomes, or other bodily fluids or components indicate the
presence in the child's body at birth of a controlled substance
classified in Section 11054 or 11055 of the Health and Safety Code.
   (C) The child manifests apparent medical effects or developmental
delays during the first three months after birth that are the result
of the presence in the child's body at birth of a controlled
substance classified in Section 11054 or 11055 of the Health and
Safety Code.
   (2) "Serious physical harm" means any of the following:
   (A) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric treatment.

   (B) Any injury, illness, or other physiological impairment,
regardless of its duration, that carries a substantial risk of death.

   (C) Any injury, illness, or other physiological impairment that
involves some permanent incapacity, whether partial or total, or that
involves some temporary, substantial incapacity.
   (D) Any injury, illness, or other physiological impairment that
involves some permanent disfigurement, or that involves some
temporary serious disfigurement.
   (E) Any injury, illness, or other physiological impairment that
involves acute pain of such a duration as to result in substantial
suffering, or that involves any degree of prolonged or intractable
pain.
   (3) "Use," as it relates to a controlled substance, means
injecting, ingesting, inhaling, or otherwise introducing into the
human body a controlled substance classified in Section 11054 or
11055 of the Health and Safety Code.
   (d) This section does not apply to the use of a controlled
substance classified in Section 11055 of the Health and Safety Code
under a prescription ordered by a practitioner specified in Section
11150 of the Health and Safety Code if the controlled substance is
used in a manner substantially consistent with the instructions of
either the practitioner who prescribed the controlled substance or
the pharmacist who dispensed the controlled substance.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
   However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.  If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
   Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.