Supreme Court to hear case of woman charged with possession after newborn tests positive

By: - April 9, 2021 12:50 am

Photo: Courtesy of the Ohio Supreme Court

The Ohio Supreme Court is taking up a case in which a woman was convicted of drug possession, but the only drugs she possessed were in her blood system and the blood system of her newborn.

Kelly Foreman was charged in Seneca County on felony drug possession charges “despite the fact that she was never shown to be in actual or constructive control of any drugs in Seneca County,” attorneys for Foreman said in appealing her conviction.

The case began after Foreman gave birth in March 2018. A test was conducted after the infant “exhibited symptoms of neonatal-abstinence syndrome” and the baby’s urine and umbilical cord tissue showed the presence of cocaine, court documents stated.

Foreman admitted to an investigating caseworker that she had used cocaine while pregnant, but the last time had been nearly two weeks before the birth. She denied using drugs at her home in Seneca County.

A Seneca County grand jury indicted Foreman on one fifth-degree felony count of possession of cocaine, and she was convicted and sentenced to three years of community control.

Foreman appealed the conviction to the Third District Court of Appeals who affirmed her conviction and sentence, but a dissenting opinion said the conviction should be reversed because the state had not proven the crime happened in Seneca County.

The majority in the appeals case decided that because the positive drug tests happened in the county, venue was established, and therefore “it is of no consequence whether the controlled substance is discovered in a defendant’s pocket or in cellular matter expelled by his or her body.”

Attorneys for Foreman say this should not stand as proof of possession and the sentence should be vacated. The ACLU also jumped to Foreman’s defense, saying in a supporting brief that she was arrested, charged and convicted in Seneca County “not for something she did there, but for merely existing there while in a certain condition: drug user.”

The ACLU, which will also stand up for Foreman in arguments before the Ohio Supreme Court, posited that if the state’s theory stands, that Foreman possessed drugs by having them in her system, then someone having drugs in their system for any amount of time could be charged with possession for “simply being in Ohio.”

This change in interpretation of the law could have “daunting new significance,” the organization said.

“It would no longer be vague evidence of a possible past offense of unknown time and place, but plain, possibly conclusive evidence of an offense occurring at the moment and place of screening,” the ACLU wrote in their brief to the state Supreme Court.

The ACLU also said the case could have a chilling effect on doctor-client privilege, balanced against a medical professional’s duty to report knowledge of a crime. In this case, the proof of the crime lies in the laboratory tests taken to find evidence of drugs.

If possessing the test results means a physician holds proof of a felony criminal act, the ACLU argued the physician may then be compelled to testify against a patient and report a patient after a “routine screening.”

“Physicians could no longer use toxicology screens as a routine tool of differential diagnosis, to exclude potential causes for a particular condition,” the ACLU stated in court documents. “Such outcomes surely are not consistent with any legislative intent; if they were, the legislature would have said so.”

Oral arguments in the case are scheduled for May 12.

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Susan Tebben
Susan Tebben

Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.

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