LEGAL GUIDE
Written by attorney Andrew David Stine | Oct 7, 2010

Breast Milk with Oxycodone leads to Mother's Arrest in Florida.

The Centers for Disease Control believes breastfeeding is ideal for babies because it is easy to digest and contains antibodies that can protect infants from bacterial and viral infections. However, if you are breast feeding and using illegal prescription drugs, like Oxycodone in the State of Florida, then prepare to be charged with a Felony.

On September 22, 2010 a young mother was arrested by the Palm Beach County Sheriff's Office (PBSO) and charged with Felony Child Neglect and according to court documents, the charges stem from the mother's use of illegal drugs while breast feeding her infant child. The infant was tested by a local hospital at the behest of the Department of Children and Family (DCF) and the blood test show a trace amount of the highly addictive painkiller in the infant's system. DCF then referred the case to the PBSO and the investigating officer signed an arrest warrant alleging that the infant's positive test for the Pharmacy grade intoxicant was passed through the breast milk of the nursing mother and in doing so willfully or by culpable negligence caused harm to the child. See Florida General Statute 827.03 (3)( c ).

As a practicing criminal defense attorney, I estimate that the State of Florida cannot meet their burden of proof regarding the facts of contaminated breast milk. I conclude this based on the leading Appellate Case of Hill v. State, 846 So. 2d 1208 (Fla. Dist. Ct. App. 5th Dist. 2003). Wherein the Appellate court reasoned that: "proof of the offense of felony child neglect requires the state to establish a high degree of culpability on the part of the defendant, equivalent to the kind of wanton and reckless behavior necessary to prove manslaughter or punitive damages." The State will argue however that according to Wynne, the State must show in order to convict that the breast feeding mother acted willfully or with culpable negligence in creating the situation or in permitting the suspect conditions to exist when she feed her infant the drug laced breast milk. State v. Wynne, 794 So. 2d 642 Fla. Dist. Ct. App. 2nd Dist. 2001).

This conclusion assumes that the breast feeding mother knew or should have known that the chemicals found in Oxycodone are small enough to pass through her breast and into the milk. This will require a confession by the mother with her knowledge of the tainted breast milk or some other form of evidence like notes from her treating doctor wherein her doctor explained these factors to her. The prosecution of this young mother is a case of first impression regarding tainted breast milk, and may have far reaching consequences even for those mother's who are lawfully prescribed medications and then breast feed their infant children. Mother's beware.

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