Can lay witnesses establish drug contamination in breast milk cases? State v. Draper Explained

The Utah Court of Appeals addressed a critical evidentiary question in child endangerment prosecutions in State v. Draper, where the court considered whether lay witness testimony could establish that marijuana use contaminates breast milk with controlled substances.

Background and Facts

Police executed a search warrant at Draper’s residence, discovering marijuana and paraphernalia. A DCFS investigator later visited Draper, who admitted using marijuana twice since her infant’s birth—once on New Year’s Eve and once after the police search. During the visit, Draper began nursing her six-month-old child. The investigator discussed “the dangers of using marijuana and nursing” and testified that “marijuana and any other drugs go through the breast milk and to the child.” Draper was charged with child endangerment under Utah Code section 76-5-112.5 for allegedly exposing her infant to controlled substances through breastfeeding.

Key Legal Issues

The central issue was whether the State presented sufficient probable cause evidence at the preliminary hearing to support bindover. Specifically, whether lay witness testimony could establish that marijuana contaminated Draper’s breast milk with controlled substances when she nursed her infant eleven days after her last reported marijuana use.

Court’s Analysis and Holding

The court determined that questions about drug contamination in breast milk are “of sufficient scientific complexity as to be beyond the realm of common experience.” The DCFS investigator’s testimony about marijuana transmission through breast milk constituted improper lay opinion on scientific matters requiring expert testimony under Utah Rules of Evidence 701 and 702. The State failed to establish a foundation for the investigator’s expertise or present any expert testimony regarding the existence, nature, or duration of contamination. Without such evidence, the court found no reasonable inference that Draper exposed her child to controlled substances through breast milk.

Practice Implications

This decision establishes important evidentiary requirements for child endangerment prosecutions involving alleged drug exposure through bodily fluids. Prosecutors must present expert testimony to establish scientific questions about drug contamination, its duration, and whether the substance constitutes a controlled substance versus a metabolite. Defense practitioners should scrutinize the scientific foundation underlying such charges and challenge cases lacking proper expert testimony at the preliminary hearing stage.