SALT LAKE CITY (AP) -- The Utah Court of Appeals has reversed a district court judge's decision to bind over a West Valley woman for trial on a third-degree felony charge of child endangerment for breast-feeding her child after smoking marijuana.
The appeals court said state child welfare officials did not support their claim that the drug entered breast milk, or in what quantities, by any scientific testimony or study.
The issue arose after a Division of Child and Family Services investigator visited the home in January 2004 after the woman's husband was caught by police dealing marijuana.
The mother allegedly admitted to the DCFS worker that she had smoked marijuana once in December 2003 and a second time on Jan. 9, 2004.
The mother began nursing her 6-month-old in front of the investigator, who discussed "the dangers of using marijuana and nursing" with the mother, but did not request any drug tests of the mother or child.
Judges Russell Bench, Judith Billings and William Thorne said the prosecutor relied only on the testimony of the DCFS investigator to testify that marijuana is passed through breast milk.
The judges said there was not sufficient expert testimony to establish that such contamination can exist.
"The question of whether marijuana was actually present in (the mother's) breast milk when she nursed her infant appears to be of sufficient scientific complexity as to be 'beyond the realm of common experience,"' the ruling said.
Maybe for an encore they could torture her until she confesses to consorting with demons.