House Bill 1393

AN ACT TO REQUIRE DRUG TESTING OF PREGNANT WOMEN ARRESTED FOR VIOLATIONS OF THE UNIFORM CONTROLLED SUBSTANCES LAW; TO PROVIDE FOR REHABILITATION; TO PROVIDE THAT A SUBSEQUENT POSITIVE TEST SHALL CONSTITUTE CHILD ABUSE; TO AMEND SECTION 97-5-39, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. A pregnant woman who is arrested for a first violation of the Uniform Controlled Substances Law shall, in addition to the requirements imposed by the initial violation, undergo drug testing to determine if any controlled substances are present in her body. If the presence of drugs is determined, the court may require the defendant to undergo drug rehabilitation and shall require random and sequential testing of the defendant. If subsequent testing determines that a controlled substance is present, the defendant shall be guilty of child abuse and shall be subject to the provisions of Section 97-3-39.

SECTION 2. Section 97-5-39, Mississippi Code of 1972, is amended as follows:

97-5-39. (1) Any parent, guardian or other person who willfully commits any act or omits the performance of any duty, which act or omission contributes to or tends to contribute to the neglect or delinquency of any child or which act or omission results in the abuse and/or battering of any child, as defined in Section 43-21-105(m) of the Youth Court Law or who knowingly aids any child in escaping or absenting himself from the guardianship or custody of any person, agency or institution, or knowingly harbors or conceals or aids in harboring or concealing any child who has absented himself without permission from the guardianship or custody of any person, agency or institution to which such child shall have been committed by the youth court shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment not to exceed one (1) year in jail, or by both such fine and imprisonment.

(2) Any person who shall intentionally (a) burn any child, (b) torture any child * * *, (c) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, or (d) test positive for a controlled substance for a second time while pregnant as provided by Section 1 of House Bill No. , 2002 Regular Session, shall be guilty of felonious abuse and/or battery of a child and, upon conviction, may be punished by imprisonment in the penitentiary for not more than twenty (20) years.

(3) Nothing contained in this section shall prevent proceedings against such parent, guardian or other person under any statute of this state or any municipal ordinance defining any act as a crime or misdemeanor. Nothing in the provisions of this section shall preclude any person from having a right to trial by jury when charged with having violated the provisions of this section.

(4) After consultation with the Department of Public Welfare, a regional mental health center or an appropriate professional person, a judge may suspend imposition or execution of a sentence provided in subsections (1) and (2) of this section and in lieu thereof require treatment over a specified period of time at any approved public or private treatment facility.

(5) In any proceeding resulting from a report made pursuant to Section 43-21-353 of the Youth Court Law, the testimony of the physician making the said report regarding the child's injuries or condition or cause thereof shall not be excluded on the ground that such physician's testimony violates the physician-patient privilege or similar privilege or rule against disclosure. The physician's report shall not be considered as evidence unless introduced as an exhibit to his testimony.

(6) Any criminal prosecution arising from a violation of this section shall be tried in the circuit, county, justice or municipal court having jurisdiction; provided, however, that nothing herein shall abridge or dilute the contempt powers of the youth court.

SECTION 3. This act shall take effect and be in force from and after July 1, 2002.