What other charges can possibly be brought against defendants who are accused of manufacturing controlled substances?
Defendants who are parents with minor children may be charged with child endangerment on top of the drug charges. They may be charged with a violation of section 273 (a) of the Penal Code. Under this section, any person who willfully causes or permits children to be placed in a situation where they are endangered shall be punished with imprisonment in country jail or state prison.
If children live or are raised by their parents in the same place where they manufacture, grow, process, distribute or sell and use drugs, this counts as child endangerment. Their safety as well as their medical and emotional well-being may be endangered.
How is child endangerment committed?
Child endangerment is committed when:
- Any person who places a child under circumstances or conditions that are likely to produce great bodily harm, death or willfully causes
- Any person permits a child to suffer unjustifiable physical pain or mental suffering
- Any person who has the care or custody of a child permits the child in a situation where his or her person or health is endangered.
Parents who are charged with drug crimes may be charged with child endangerment under the last paragraph where the parent has care or custody over the child.
What is the penalty for child endangerment?
If the parent is charged under Section 273 (a), it is a felony charge. The penalty for child endangerment shall be imprisonment not to exceed one year in county jail or not to exceed two, four, or six years in state prison. If the parent is charged under Section 273 (b), it is a misdemeanor charge.
How can growing up in an environment with drugs count as child endangerment?
A parent who allows his or her child or children to grow up in an environment where drugs are manufactured, used or sold exposes them to a great risk of bodily harm. Children may ingest or inhale toxic substances which their bodies cannot yet handle.
If the parent has a laboratory in the home, the children are exposed to the risk of being burned. Caustic chemicals may be around the home within reach of the child. If the parent processes, repacks, distributes, or sells drugs in the home where their children eat, sleep and play, they are exposing their children to potential violence.
It is not necessary that the child is actually hurt. Mere exposure to drug use, drug sales or drug manufacturing is considered criminal negligence.
If I am arrested only for possession or use of drugs, can I still be charged with endangerment?
Yes. A person under the influence of drugs may sleep in a bed with a child and roll over the child, thus asphyxiating a child. A person under the influence of drugs may forget to feed or give a child water or formula, thus, dehydrating the child. A person under the influence of drugs may not recognize symptoms of illness or injury to a child and fail to seek medical treatment for the child. A person under the influence of drugs may not maintain the hygiene of the home, thus exposing the child to infestation and infection.
What is criminal negligence?
It is behavior that departs from the conduct of an ordinarily prudent or careful person. It is conduct that show disregard for human life. It is culpable, gross or reckless. If an ordinary reasonable person were in the same position as that parent, and the ordinary person is aware of the risk to the child, then the parent who was charged in the drug crime is presumed to also be aware of the risk involved to the child. Thus, the voluntary and willful acts of exposing children to the danger of drugs becomes criminal negligence.
It is not only that the parents were inattentive to the child’s needs. It is not because they are passive or neglectful or permissive in their care or custody of the child. Their disregard of the child’s safety becomes a crime because they put their children in an environment where there is risk of chemical contamination, filth, fire risk, explosion hazard or high potential for violence.
What specific actions are penalized?
- Neglecting the conditions in the home by allowing the home to be littered with filth, infested with vermin (cockroaches and flies).
- Unsanitary conditions such as when there is inadequate plumbing or when feces or urine, rotting food or garbage accumulates.
- Having used or loaded syringes in the house where they are within reach of children.
- Having firearms in the house within reach of children.
- Having controlled substances around the house within reach of children.
If I am charged with growing marijuana or processing medical marijuana, can I still be charged with child endangerment?
Yes, you may still be charged with child endangerment. Farms where marijuana is produced is so lucrative that farmers protect their crops with firearms. If the farm is indoors, there is still a risk of fire or explosion from poor ventilation, from convoluted wiring, or from poorly constructed greenhouses.
Processing marijuana to extract the active ingredient THC uses highly volatile chemicals such as butane (the fuel used in cigarette lighters) and honey oil. These are not protected by the defense that the marijuana grown and processed is for medicinal use. These chemicals pose a real danger of fire and explosion just like in methamphetamine labs. This criminal activity endangers not only the residents of the house but also the public at large. Manufacturing controlled substances by chemical extraction is specifically penalized under Section 11379.6(a) of the California Penal Code.
What if the child is not mine?
It doesn’t matter if the person charged with drug crimes is not the parent or relative of the child. The phrase “care or custody” of a child does not mean that the child is a biological relative or legally under the care and custody of the person charged with drug crimes.
It is enough that the child is present in the house. There is no need for there to have been an agreement between the parent and the person charged with the drug crime (as when the person charged with the drug crime was a babysitter). It does not matter that the child was in the house only temporarily, or for a few hours. When during the arrest a child is found in the place where the drug activity was conducted, then there is child endangerment.
A person may have status as a caretaker when the child has a term of endearment for the person or eats with him or her. If the person charged with the drug crime is the only adult in the house when the child was present in the home, that person is a caretaker or caregiver of the child.
What if the children are my own?
If the child is your own and resided (lived full time) in the home where a methamphetamine laboratory is also located, this becomes also an aggravating factor in considering the sentence. This is called an enhancement of the penalties. It only applies to the manufacture of methamphetamine or to the precursors of methamphetamine. It does not apply to the manufacture of other controlled substances such as cocaine or marijuana.
What are the penalties for child endangerment?
The penalties are required to include:
- Mandatory probation for 2 years.
- Protective order for the children to be excluded or removed from the home.
- One year of child abuse treatment counselling
- Abstaining from the use of alcohol or drugs and be subject to random drug testing.
The court may also impose a fine of $5000 for a felony conviction or $1000 for a misdemeanor conviction.
What other charges can be brought against me if I am charged with misdemeanor drug charges?
Alternative charges that may be brought against you may be:
- Engaging in immoral practices or habitual drunkenness in the presence of children (section 273g of the California Penal code)
- Contributing to the delinquency or dependency of a minor (Sec 272)
Are you facing child endangerment charges? Or are you facing enhancement of sentencing because of the presence of a minor? Do you need legal assistance? Contact the Drug Crimes lawyers at the Ramiro J. Lluis Law Office. They are experienced and competent lawyers who can help you.