Smoking In Cars: NE Car Ban Talk

By Jonathan On Jul 5, 2017

Car Ban Talk Update

County attorney: Smoking parents won’t be prosecuted

Frank Graham (North Platte Bulletin)
July 27, 2006
Lincoln County Attorney Jeff Meyer’s said that based on Nebraska law, exposing minor children to second-hand smoke does not rise to the level of criminal behavior and advised North Platte police chief Martin Gutschenritter against making any arrests.

Gutschenritter believes people smoking in cars where youngsters are present are child abusers. He asked Meyer to determine if the police can arrest any adult with a child in it for child abuse.

Meyer said he understood what Gutschenritter was doing and even called it “noble,” but said his opinion that exposing children to second-hand smoke was based the legality of the request.

Gutschenritter said the impetus for his request was the recent U.S. Surgeon General’s report on secondhand smoke.

Surgeon General Richard Carmona reported recently that the harmful effects of secondhand smoke are greater than originally thought. He also concluded that second-hand smoke is particularly harmful to young children whose developing bodies are especially vulnerable.

Carmona urged parents to smoke outdoors. He said open windows in a house or a car do not protect children from second-hand smoke.

Gutschenritter said the report prompted him to explore the possibility that an adult smoking in a car with a child inside was committing misdemeanor child abuse, punishable by up to one-year imprisonment, a $1,000 fine or both.

Gutschenritter’s request drew nationwide publicity and much debate locally.

“I knew it would be controversial,” Gutschenritter said, “but I also knew it would generate conversation and debate.”

Gutschenritter said his main hope was that it would benefit youngsters. He said he’s received letters from across the country thanking him for bringing the issue to the forefront and opening their eyes.

In a letter to Gutschenritter dated July 14, Meyer offered no argument that exposing second-hand smoke is anything but detrimental to children’s health.

But Meyer said he could find no statute in Nebraska or anywhere in the U.S. that specifically outlaws exposing children to second-hand smoke in any venue, including motor vehicles.

Meyer wrote that the Surgeon General’s opinion specifically stated that exposure to second-hand smoke to a child in “any” confined space is detrimental. He said if exposure in a car rose to the level of a criminal offense, then exposure in a house, building, camper or any other conceivable confined space would also be harmful.

“There is not a Nebraska law that specifically recognizes the exposure of children to second-hand smoke as a criminal act,” Meyer wrote.

Meyer said to lump the act into the child abuse statute was problematic. He said while most studies conclude its harmful, he could find no study that suggested it was “probable” that a child’s health would suffer harms from exposure.

Meyer wrote that history has examples of children who have been harmed and others who haven’t after both being exposed. He said no mathematical formula exists to determine harm and it would be impossible to find a medical expert who could testify that the simple act of exposure to second-hand smoke would cause probable harm “within a reasonable degree of medical certainty.”

Meyer said he was unable to locate a single specific example of a prosecution for child abuse nationwide based solely on exposure to second-hand smoke. He said consultation with other prosecutors also turned up nothing.

Meyer also wrote that courts have made child custody and visitation decisions based on the presence of second-hand smoke but that a check with the Nebraska Department of Health and Human Services failed to reveal a single case where a healthy child was removed from a home based on it.

Gutschenritter said he hoped the state legislators and the North Platte City Council would consider passing legislation making it illegal to smoke inside a vehicle with children who are required to be in child safety seats.

Gutschenritter said earlier that he would consider asking the North Platte City Council for an ordinance banning smoking with children in cars.
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Bulletin readers overwhelmingly rejected Martin Gutschenritter’s idea to arrest adults smoking around children in cars in our volunteer poll. With 463 readers voting, 369, or 67 percent, don’t want to see parents arrested for smoking in cars with children. 147 readers, or 32 percent, agreed that smoking in cars with children was child abuse and 7 readers, or 2 percent, were not sure.

County Attorney Says Tobacco Smoke In Cars Is Not Child Abuse
July 20, 2006

Cops in North Platte won’t be busting anyone for exposing children to secondhand smoke in motor vehicles.
Lincoln County Attorney Jeff Meyer says he personally doesn’t like the idea of smoking around children, but it is not barred by law and doesn’t qualify as child abuse.

Police Chief Martin Gutschenritter sought the county attorney’s advice based on a recent national study, reporting on the danger of secondhand tobacco smoke. Gutschenritter wanted to know if police could ticket people, who smoke when children are in their vehicles, for child abuse.

”Generally, acts that are not specifically proscribed against by statute do not rise to the level of being criminally sanctionable,” Meyer told the North Platte Telegraph.

Gutschenritter said he hoped state or local policymakers would make such conduct illegal.
Read

Smoking with kids in vehicle

07/19/2006
By JOHN LINDENBERGER , The North Platte Telegraph

Can drivers who expose their young children to secondhand smoke in a vehicle be charged with child abuse? Lincoln County Attorney Jeff Meyer says no.
“It is my opinion that based upon the current state of Nebraska law, the exposure of minor children to secondhand smoke does not rise to the level of being criminal,” Meyer said in a letter to Police Chief Martin Gutschenrittter.
In a follow-up interview, Meyer said he personally feels smoking around children is not a good thing. However, he feels that it is not for the courts to make new laws on this issue.
“And I certainly don’t think it’s for county attorneys to make new laws,” he added.
In his letter to the police chief, Meyer acknowledged there is no argument that secondhand smoke is detrimental to a child’s health, and he feels efforts to prevent children’s exposure to secondhand smoke are certainly noble.
“Generally, acts that are not specifically proscribed against by statute do not rise to the level of being criminally sanctionable,” Meyer said.
Since exposing children to secondhand smoke is not specifically addressed by state statute, Meyer said he feels there is no probable cause to arrest an individual for this act alone.
“If there is no criminal act to prosecute, there can be no probable cause to arrest for an act which is not recognized as criminal,” Meyer said.
In addition, Meyer said he does not feel exposing children to secondhand smoke fits within the definition of child abuse. Therefore, such an act would not be considered criminal under child abuse laws.
In response to Meyer’s letter, Gutschenritter said he hopes that the North Platte City Council or the Nebraska Legislature will consider passing legislation as they are doing in other states.
Despite being advised not to take action on this issue by Meyer, Gutschenritter feels that the issue has raised awareness within the community, and for that he is thankful.
“I knew it would be controversial and I knew it would also generate conversation and debate. I was right,” Gutschenritter said. “My main hope, however, was that it would benefit our youngsters, and I believe I was successful there as well.”
He said he has received many letters and phone calls from people throughout the nation who had allowed their children to be exposed to secondhand smoke. Most thanked Gutschenritter for bringing the issue to their attention.
Gutschenritter said some even pledged to protect their children from further exposure to secondhand smoke. One such parent, who is also a local restaurant manager, announced she plans to take steps to make the restaurant smoke-free to protect adults as well.

Anti-Smoking Group Supports Arrest and Imprisonment of Adults Who Smoke in Cars with Children

July 11, 2006
By Michael Siegel
According to an article in the North Platte Telegraph, a Nebraska anti-smoking group is supporting efforts to charge adults who smoke with children in their cars as child abusers, making them subject to arrest and possible imprisonment.

Spurred on by the release two weeks ago of the Surgeon General’s report on the health hazards of involuntary smoking, the North Platte police department is pursuing the possibility of treating smoking in a car with children as child abuse and is considering arresting such individuals and charging them with child abuse, which is a crime (a misdemeanor) which carries with it a penalty of up to one year in jail and/or a fine of $1,000.

According to the article: “In response to a recent report from the U.S. Surgeon General about the dangers of second-hand smoke, local police officials report they are preparing to crack down on drivers who expose their children to second-hand smoke. ‘It is evident when reviewing this report that second-hand smoke around children is the most insidious form of child abuse,’ said North Platte Police Chief Martin Gutschenritter. ‘We simply did not feel we could overlook it.'” …

“‘With that in mind, we are researching to determine whether law enforcement has probable cause to arrest anyone exposing children to second-hand smoke inside a vehicle,’ Gutschenritter said. He added the police department is working with the county attorney to determine if smoking in a vehicle with children present would be considered child abuse. … ‘If you look at the state statute regarding child abuse, and if you look at the Surgeon General’s report, we believe that it’s a clear violation,’ Gutschenritter said. ‘The fact that the injury isn’t immediate, we feel is irrelevant.’ Child abuse is a Class I misdemeanor, which carries a penalty of up to one year in prison and/or a $1,000 fine. This would be considerably harsher than failing to buckle up a child in a vehicle – an offense punishable by a $25 fine.”

In response to this proposal, an anti-smoking group – the Lincoln County Tobacco Coalition – expressed its support, apparently stating: “We applaud any type of tobacco prevention initiatives.” According to the article, “the Lincoln County Tobacco Coalition supports any efforts that help reduce children’s exposure to second-hand smoke because it is a proven fact that second-hand smoke is hazardous to the health of children.”

The Rest of the Story

The anti-smoking movement is now literally supporting the “smoking police.” They want, quite literally, for the police to go around and arrest people for smoking in the presence of children. In this case, the Lincoln County Tobacco Coalition is supporting a measure that could well result in the imprisonment of adults who puff on a cigarette in a car with children present.

Do you mean to tell me that to prevent the mere risk of some ear infections and respiratory infections, the Lincoln County Tobacco Coalition is willing to support the imprisonment of parents, removing them from their kids for a period of up to one year? You can’t be serious. It is far more devastating, to be sure, for children to have a parent removed from them, than for the child to be at increased potential risk of an ear or upper respiratory infection.

It’s preposterous that a parent who fails to buckle up their child in a car is punished with just a $25 fine, but smoking in that same car may soon result in a $1,000 fine and possible imprisonment. Failing to buckle a child in a seat belt will almost certainly result in severe harm in the case of a major car accident. And it could result in the death of the child. But in most cases, smoking in the car does nothing more than slightly increase the risk of minor health problems like ear and upper respiratory infections.

It is not surprising to me that at least one police force has taken the bait set by a number of anti-smoking advocates and groups and supported treating smokers who smoke around children as child abusers. But it is still surprising to me that the tobacco control coalition would support such a proposal, rather than condemn it as representing an undue intrusion into privacy and as placing children at risk of real and inevitable harm by allowing their removal from their parents.

This does represent a dangerous intrusion into personal privacy and autonomy. It literally is the smoking police watching over us. It is the beginning of a slippery slope that leads the police right into our homes. There’s no real qualitative difference between a private car and a home. So if the police can start arresting me on the spot for smoking in my car with children inside, what is to stop them from starting to arrest me for smoking in my own home?

In fact, there is no justification for them not to do this, if smoking around children is child abuse. And there’s no justification for the Lincoln County Tobacco Coalition not to support the entrance of smoking police into the home.

I’ll be honest. When I used to hear smokers’ rights groups talking about “the smoking police,” I thought it was a profound exaggeration, that anti-smoking groups were not supporting anything of the sort, and that the whole argument was basically a bunch of crap. Unfortunately, I appear to have been quite wrong.

Not only is the prospect for the smoking police alive and well, but we in tobacco control are supporting this unwarranted intrusion into the privacy and autonomy of American citizens.

Believe me, we don’t want to go there. Not if we are to remain a free country. Not if we are to retain our autonomy as parents.

In public health, we shouldn’t be willing to trade definite harm to children for reducing merely the risk of disease. We in tobacco control better learn the difference between risk and harm, and quite quickly. Otherwise, we may end up causing irreparable harm to the very children who we claim we are trying to protect.
Read

North Platte police chief ties second-hand smoke to child abuse

Jul 08, 2006

NORTH PLATTE — North Platte Police Chief Martin Gutschenritter says he believes parents who expose their children to secondhand smoke in a vehicle should be charged with child abuse.

Gutschenritter’s stance comes after U.S. Surgeon General Richard Carmona’s recent condemnation of secondhand smoke. Carmona’s 670-page study on the issue concluded that secondhand smoke is not a mere annoyance but a serious health hazard.

Gutschenritter said secondhand smoke around children is “the most insidious form of child abuse.”

Carmona implored smoking parents to indulge in their habit outdoors, adding that opening a window in a house or a car will not protect children from secondhand smoke.

“With that in mind, we are researching to determine whether law enforcement has probable cause to arrest anyone exposing children to secondhand smoke inside a vehicle,” Gutschenritter said.

Lincoln County Attorney Jeff Meyer did not return a phone message left at his residence.

Nebraska law defines child abuse as placing a minor child in a situation that endangers his or her life or physical or mental health. The act can be caused either knowingly, intentionally or negligently.

Secondhand smoke is believed to contribute to some children developing asthma and other respiratory problems.

“If you look at the state statute regarding child abuse, and if you look at the surgeon general’s report, we believe that it’s a clear violation,” Gutschenritter said. “The fact that the injury isn’t immediate, we feel is irrelevant.”

Child abuse is a Class I misdemeanor, which carries a penalty of up to one year in prison and a $1,000 fine.

The Arkansas Legislature this year passed a state law that prohibits smoking in a car with a child who must be restrained in a safety seat. Lawmakers in Utah and Michigan are also considering similar legislation.

Gutschenritter said the police department has a duty and a responsibility to protect and serve all citizens, especially young children who are unable to protect themselves.

“While we are researching this issue, we strongly urge all smokers to be responsible and to help protect our youngsters by not exposing them to secondhand smoke anywhere, but especially in vehicles,” he said.