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The "BWI" Debate Continues?

By Javier Lavagnino, Esq. on July 06, 2009 5:19 PM

Pursuing Child Neglect/Endangerment Charges Against Breast-Feeding Moms Tough for Prosecutors

OK, somewhat reluctantly, here's a follow up on the "ground-breaking" case of Stacey Anvarinia, the 26 year old North Dakota mother who got herself arrested after breast-feeding her baby, while intoxicated, in front of some cops. I had brought up her case after she pleaded guilty to felony child neglect, and asked the burning question of whether more mothers could face similar charges.

Well, fortunately for us, someone had the time to do the leg-work into discovering other circumstances where mothers have been prosecuted for similar charges based on so-called "BWI". An AP report today pointed out that:

"Arrests involving intoxicated breast-feeding mothers have been difficult to prosecute.

The city of Bethel, Alaska, paid two women $2,500 apiece in 1992 to settle a lawsuit they filed over their arrest on charges of endangering their children by drinking alcohol before breast-feeding. The women had been charged with misdemeanor reckless endangerment in 1990, but prosecutors later dropped the charges, saying no crime had been committed."

So, if anything, the story seems to confirm that such prosecutions may indeed be pretty unusual. Still, it's probably a good idea to clarify up front any possible misconceptions. First off, there's a clear distinction between these types of cases of child neglect/endangerment, and more typically-heard-of offenses related to being under the influence. DUI cases and the BAC (blood alcohol content) levels outlined in DUI/DWI laws are specific to motor vehicle cases. Of course, if a parent has their kid in the car while driving under the influence, that certainly can result in child endangerment charges.

However, prosecutions for child neglect and endangerment focus on, well ... precisely that, whether a child was neglected or endangered by a parent or caretaker. Alcohol and/or drugs can be involved in a variety of ways in such cases. For example, parents can endanger their infant at home by passing out drunk and/or simply by being too intoxicated to be able to properly care for them. In one tragic story earlier this year, a Pennsylvania couple faced child endangerment charges for being "too drunk and high to notice their 2-month-old daughter was dying from sudden infant death syndrome [SIDS]."

Going back to charges of child neglect or endangerment based on a mother breast-feeding while intoxicated, the prosecution need not necessarily show that a child suffered ill-effects from the breast-feeding itself (which as noted by the article is not an easy thing to do, particularly if no tests were involved). A prosecutor could argue that an individual was intoxicated to the point where they could no longer take proper care of the child. As far as Avarinia's case went, authorities indeed claim that it was the "totality of the circumstances" that led to her arrest, as opposed to simply "just the breast-feeding". Perhaps this can put the debate to sleep?

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