The probation sentence is part of a plea agreement, but the judge said unless Hawai'i's appeals court rules otherwise, the state has shown that drug use by a pregnant woman can lead to felony charges.

Aiwohi, who wept during the hearing, declined to comment.

There are only a few such cases nationwide. Some social service providers and healthcare professionals argued that such prosecutions will discourage pregnant women from seeking help.

But prosecutors maintained that pregnant women should be held accountable for their actions when they lead to the death of children.

Aiwohi, 31, faced a manslaughter charge over the death of her son, Treyson, who was born July 17, 2001. The infant died two days later from a lethal level of methamphetamine in his blood.

Aiwohi said she had smoked ice the day of the birth and the three preceding days, according to grand jury testimony.

Aiwohi and her lawyer, Todd Eddins, asked that the charge be thrown out, but Town issued a ruling in June upholding the charge, declaring that state law does not give immunity to a mother for harming a fetus that that develops into a baby who is born alive but dies.

Manslaughter carries a maximum 20-year prison term, but about two weeks after Town's decision, prosecutors and Aiwohi entered the plea agreement that called for probation. The agreement, however, allows Aiwohi to appeal Town's refusal to dismiss the charge.

Town said yesterday that it was a very rare homicide case in which the defendant wasn't ordered to serve jail or prison time. But he noted that Aiwohi has taken responsibility for the death and has completed drug treatment and parenting programs. She also has taken on the responsibility of raising her five other children, he said.

Town heard from Aiwohi's mother, Pat Puakea, and from three addicts who said Aiwohi helped them in their recovery.

The judge, however, said that unless the manslaughter charge is dismissed on appeal, the case establishes "clear notice" of future prosecutions.

"In this court's view, drug usage, including the use of crystal methamphetamine, is a matter of choice and not an illness," he said. "Certainly, it is a conscious choice to obtain and use the drug initially, and worse yet, while pregnant." He also said, "Why anyone would use the drug knowing they are carrying a child is baffling to most people."

City Deputy Prosecutor Glenn Kim hailed the judge's remarks. He said it wasn't an easy decision to prosecute Aiwohi in view of the fact that she had given up drugs and had her family reunited. "We needed to get justice for the baby and we needed to hold her accountable," Kim said.

"The object was never to throw this woman in jail," Kim said. "She has five kids and she has cleaned up her act."

Eddins said Aiwohi knew what was going to happen at the sentencing yesterday and was not surprised. "She respects the judge and she respects his decision, but she is optimistic that we will prevail on appeal," he said.

He said Aiwohi will lose her job at the Hina Mauka, a drug- and alcohol-treatment provider, because of her conviction. But she is attending the University of Phoenix here, hoping to get a master's degree and another job.