Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Attorney Sam’s Take: Mother Smoking Marijuana Is Arrested In Child Endangerment Case When Child Falls Out Window

It did not happen in Boston.. This time. But similar things have happened here. After all, there are often consequences to drug use…whether or not the drug involved is actually illegal.

Marillis Santiago, 22, of Hartford, Conn.(hereinafter, the “Defendant”) has had a rather bad weekend. The local police say that while her 2-year-old son was toddling around, she was smoking marijuana at the kitchen table.

She apparently did not notice that he was playing around the open window (sans screen of course) of the third floor apartment.

I suppose you can guess what happened.

The child thankfully survived the resulting fall, but suffered a bruised liver, a fracture to his right arm and facial lacerations.

The Defendant was charged with risk of injury to a minor, marijuana possession and possession of marijuana with 1,500 feet of school.

While the titles of various laws may be different from jurisdiction to jurisdiction, the theories behind them are usually the same. Therefore, charges regarding child endangerment would still be brought here in Massachusetts. However, there are a couple of differences with regard to the treatment of the marijuana.

As you may know, Massachusetts decriminalized possession of a small amount of marijuana. Therefore, the fact that the Defendant was smoking it in her apartment (depending on the amount she had) would not, alone, have subjected her to arrest. Further, in Massachusetts, mere possession of an illegal substance near a school zone is not a crime unless one has the intention of distributing it.

As we have discussed in the past, said distribution can also mean sharing it with your pals.

However, the smoking of the pot can lead to arrest depending on circumstances. Sometimes, folks don’t think of these circumstances right off…perhaps because they are not always directly addressed in the applicable le laws.

Some of these may seem like common sense…which, as you know, is not so common these days..

For example, it is legal for me to drive my car. It may also be legal for me to smoke marijuana. However, it is still illegal for me to drive my car while under the influence of the marijuana. That is called Operating Under The Influence and is the same as if I were driving drunk.

Likewise, it is not legal for me to be smoking dope if I am supposed to be working in a job that effects public safety. We have seen a number of cases where the negligence of someone is so great that the Commonwealth determines that it is actually criminal.

As also noted, this particularly will happen where the resulting calamity gets a lot of media attention. That’s when our law enforcement politicians become particularly creative.

Getting back to the Defendant, she would likely be facing changes in any state of the union, whether marijuana was legal or not. She is, after all, expected to demonstrate a certain amount of responsibility when a young child is depending on her.

Getting high at a nearby table with the windows open and the toddler ready to experience free fall does not qualify.

Yes, it is another example of negligence equaling criminal behavior.

But then, everyone messes up every once in a while. The law, however, is not always as understanding as one might wish. If you find yourself being judged a bit harshly…with criminal charges to follow…and would like to discuss the situation with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

Note To Regular Readers: As mentioned last week, I am still recovering from an eye issue. Therefore, I will take one more week of Monday, Wednesday and Friday only blogging this week with hopes to going daily again next week.

To view the original story in which parts of this blog were based, please go to : http://mobile.boston.com/art/30/news/local/connecticut/articles/2010/11/21/mom_arrested_after_toddlers_fall_from_window/

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