The military is one of the only jurisdictions in the country that has the ability to criminally prosecute drug cases based only on a urinalysis test or a failed drug test.
How are drug cases typically resolved?
More often than not, drug cases are resolved through administrative processing for separation. If you are facing an administrative separation board, the experience of defense counsel can be critical. In an administrative separation case, the resources for expert assistance from a toxicologist or chemist is often not available. The defense counsel must properly cross-examine a government toxicologist. The lawyer must also often assume the role of educating members of an administrative separation board on the science involving drug tests.
The decision to prosecute a drug and/or urinalysis case can also be heavily personality dependent on the command. There are some units that are excessively aggressive in prosecuting urinalysis cases.
More often than not, drug cases are resolved through administrative processing for separation. If you are facing an administrative separation board, the experience of defense counsel can be critical. In an administrative separation case, the resources for expert assistance from a toxicologist or chemist is often not available. The defense counsel must properly cross-examine a government toxicologist. The lawyer must also often assume the role of educating members of an administrative separation board on the science involving drug tests.
The decision to prosecute a drug and/or urinalysis case can also be heavily personality dependent on the command. There are some units that are excessively aggressive in prosecuting urinalysis cases.
What are the commander's options?
-Determine the use was not wrongful and take no action.
-Nonjudicial punishment
-Administrative separation
-Court-martial
-Determine the use was not wrongful and take no action.
-Nonjudicial punishment
-Administrative separation
-Court-martial
Is processing for separation mandatory?
Processing for separation is mandatory in positive urinalysis cases. Generally, the commanding officer has the authority to determine that a urinalysis result was caused by administrative errors (faulty chain of custody, evidence tampering) or that the drug use was not wrongful (prescription, unknowing ingestion). In those cases, the positive urinalysis may not constitute a drug abuse incident.
Processing is also mandatory when there is an admission of drug use, one or more drug related offenses, no contest plea in civilian court, civilian conviction, or deferred civilian prosecution.
Processing for separation is mandatory in positive urinalysis cases. Generally, the commanding officer has the authority to determine that a urinalysis result was caused by administrative errors (faulty chain of custody, evidence tampering) or that the drug use was not wrongful (prescription, unknowing ingestion). In those cases, the positive urinalysis may not constitute a drug abuse incident.
Processing is also mandatory when there is an admission of drug use, one or more drug related offenses, no contest plea in civilian court, civilian conviction, or deferred civilian prosecution.
Is is possible to request that the Commander determine that I did not have a drug incident?
Yes. Our firm can help.
Navy and Marine Corps: SECNAVINST 5300.28F and MILPERSMAN 1910-146 permits a commander to determine a use of drugs was not wrongful. We believe the SECNAVINST applies to the Marine Corps. The separations and retirement manual is silent on issues of discretion.
Coast Guard: COMDTINST M1000.10A is similar to the Navy regulations and permits a commander to determine that a drug was unknowingly ingested.
Army Regulation 600-85 can be read to authorize commanders to make a preliminary determination that a drug use was illegal.
Yes. Our firm can help.
Navy and Marine Corps: SECNAVINST 5300.28F and MILPERSMAN 1910-146 permits a commander to determine a use of drugs was not wrongful. We believe the SECNAVINST applies to the Marine Corps. The separations and retirement manual is silent on issues of discretion.
Coast Guard: COMDTINST M1000.10A is similar to the Navy regulations and permits a commander to determine that a drug was unknowingly ingested.
Army Regulation 600-85 can be read to authorize commanders to make a preliminary determination that a drug use was illegal.
Cutoff Levels and Detection Windows
Below is a list of common drug test screening cutoffs and detection windows for GC/MS testing. The military can also request testing for steroids. The detection windows are general in nature because so many variables can affect the length of the detection period.
Where are the drug labs located?
- US Army, Fort Meade, MD
- US Army, Tripler AMC, HI
- US Navy, Great Lakes, IL
- US Navy, San Diego, CA (no website)
- US Navy, Jacksonville, FL
- US Air Force, Lackland, TX (no website)
How long does it take for the unit to receive test results?
Negative results are usually posted on the web portal for program managers within 1-3 day(s) from the time specimens are received at the lab. Positive results are usually posted on the portal within 3-5 days from the time specimens are received at the lab.
Negative results are usually posted on the web portal for program managers within 1-3 day(s) from the time specimens are received at the lab. Positive results are usually posted on the portal within 3-5 days from the time specimens are received at the lab.
How are samples tested?
Gas chromatography / mass spectrometry. Basically, the gas chromatography uses an inert gas to carry the urine through separation columns. The samples are broken down by boiling temperature and attraction to liquid or gaseous phases. Compounds are identified by their separation times (retention times). After the compounds are broken down, the sample is ionized (bombarded with electrons). That process eventually produces a molecular fingerprint that is read by a mass spectrometer. When used properly, the results are considered to be extremely accurate.
It is extremely important to note that these are general drug detection windows.
Additionally, our experience is that different toxicologists from the military drug labs sometimes testify to slightly different drug detection windows during hearings.
Drug detection windows are extremely important for reservists, because reservists may not be convicted at a court-martial unless the drug use occurred while on federal duty.
Gas chromatography / mass spectrometry. Basically, the gas chromatography uses an inert gas to carry the urine through separation columns. The samples are broken down by boiling temperature and attraction to liquid or gaseous phases. Compounds are identified by their separation times (retention times). After the compounds are broken down, the sample is ionized (bombarded with electrons). That process eventually produces a molecular fingerprint that is read by a mass spectrometer. When used properly, the results are considered to be extremely accurate.
It is extremely important to note that these are general drug detection windows.
Additionally, our experience is that different toxicologists from the military drug labs sometimes testify to slightly different drug detection windows during hearings.
Drug detection windows are extremely important for reservists, because reservists may not be convicted at a court-martial unless the drug use occurred while on federal duty.
VARIABLES THAT CAN AFFECT MILITARY DRUG DETECTION WINDOWS
method of ingestion
amount ingested
history of usage
drug metabolism and half-life
physical condition
fluid intake prior to test
method of ingestion
amount ingested
history of usage
drug metabolism and half-life
physical condition
fluid intake prior to test
Marijuana (THC) - 15 ng/ml
Half Life - Approximately 20 - 36 hours
Oral - 2-3 days
Eaten - 1-5 days
Moderate Smoker - 5 days
Heavy Smoker - 10 days
Chronic Smoker - 14-20 days
Effects from using cannabis products are felt within minutes and reach their peak in 10-30 minutes. Typical marijuana smokers experience a high that lasts approximately 2 hours. Most behavioral and physiological effects return to baseline levels within 3-5 hours after drug use.
Marijuana Laced-Brownies: Behavioral Effects, Physiologic Effects, and Urinalysis in Humans Following Ingestion
Half Life - Approximately 20 - 36 hours
Oral - 2-3 days
Eaten - 1-5 days
Moderate Smoker - 5 days
Heavy Smoker - 10 days
Chronic Smoker - 14-20 days
Effects from using cannabis products are felt within minutes and reach their peak in 10-30 minutes. Typical marijuana smokers experience a high that lasts approximately 2 hours. Most behavioral and physiological effects return to baseline levels within 3-5 hours after drug use.
Marijuana Laced-Brownies: Behavioral Effects, Physiologic Effects, and Urinalysis in Humans Following Ingestion
Cocaine (BZE) - 100 ng/ml
Half life - 6-8 hours
2-4 day window
Injecting cocaine produces an effect within 15-30 seconds. A hit of smoked crack produces an almost immediate intense experience and will typically produce effects lasting 5-15 minutes. Similarly, snorting cocaine produces effects almost immediately and the resulting high may last 15-30 minutes. After oral ingestion effects are felt within an hour.. General effects will persist for 1-2 hours depending on the dose and late phase effects following binge use may last several days.
Half life - 6-8 hours
2-4 day window
Injecting cocaine produces an effect within 15-30 seconds. A hit of smoked crack produces an almost immediate intense experience and will typically produce effects lasting 5-15 minutes. Similarly, snorting cocaine produces effects almost immediately and the resulting high may last 15-30 minutes. After oral ingestion effects are felt within an hour.. General effects will persist for 1-2 hours depending on the dose and late phase effects following binge use may last several days.
Amphetamines - 100 ng/ml
Designer Amphetimines (MDMA, MDA, MDEA) - 500 ng/ml
1-2 days
2-4 days if heavily used
Onset of effects is rapid following intravenous use and smoking, while effects onset more slowly following oral use. Overall effects typically last 4-8 hours; residual effects can last up to 12 hours.
Duration of Detectable Methamphetamines
Designer Amphetimines (MDMA, MDA, MDEA) - 500 ng/ml
1-2 days
2-4 days if heavily used
Onset of effects is rapid following intravenous use and smoking, while effects onset more slowly following oral use. Overall effects typically last 4-8 hours; residual effects can last up to 12 hours.
Duration of Detectable Methamphetamines
Opiates
Half-life about 30 minutes
Generally, about 2-4 days.
Morphine - 4000 ng/ml
Codeine - 2000 ng/ml
Oxycodone / Oxymorphone 100 ng/ml
6-monoacetylmorphine (heroin) - 10 ng/ml
Half-life about 30 minutes
Generally, about 2-4 days.
Morphine - 4000 ng/ml
Codeine - 2000 ng/ml
Oxycodone / Oxymorphone 100 ng/ml
6-monoacetylmorphine (heroin) - 10 ng/ml
Illegal Searches
Probable Cause Urinalysis.
1. A urinalysis test is constitutional if based upon probable cause. Mil. R. Evid. 312(d) and 315.
2. A positive urinalysis provides probable cause to seize hair sample for drug testing. United States v. Bethea, 61 M.J. 184 (C.A.A.F. 2005).
3. A warrant or proper authorization may be required.
Schmerber v. California, 384 U.S. 757 (1966). Warrantless blood alcohol test was justified by exigent circumstances.
United States v. Pond, 36 M.J. 1050 (A.F.C.M.R. 1993). Warrantless seizure of urine to determine methamphetamine use was not justified by exigent circumstances because methamphetamine does not dissipate quickly from the body.
Random Inspections.
A urinalysis is constitutional if it is part of a valid random inspection. Mil. R. Evid. 313(b); United States v. Gardner, 41 M.J. 189 (C.M.A. 1994).
The fact that the results of urinalysis inspections are made available to prosecutors did not make the inspection an unreasonable intrusion. (Note: This ruling has not been challenged since the U.S. Supreme Court’s decision in Ferguson v. City of Charleston, 532 U.S. 67 (2001), which found a similar policy unconstitutional). See also Skinner v. Railway Labor Executives, 489 U.S. 602 (1989) (urine tests of train operators involved in accidents are reasonable searches) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (urine testing of employees who apply to carry firearms or be involved in drug interdiction does not require a warrant). Chandler v. Miller, 520 U.S. 305 (1997) (to conduct urinalysis without probable cause, must show “special need”).
Authority to order urinalysis inspections. United States v. Evans, 37 M.J. 867 (A.F.C.M.R. 1993).
Commander of active duty squadron to which accused’s reserve unit was assigned had authority to order urinalysis inspection. But see United States v. DiMuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (Commander of 162nd FW, a national guard unit, had no authority to order accused to submit to urinalysis because accused was at the time in “Title 10” status vice “Title 32” status even though accused was still part of 162nd FW); United States v. Miller, 66 M.J. 306 (C.A.A.F. 2008) (where urinalysis which was the product of an order issued by a civilian Air Reserve Technician who did not have command authority to issue the order, and thus was not incident to command, was unlawful).
Subterfuge under Mil. R. Evid. 313(b).
United States v. Shover, 45 M.J. 119 (C.A.A.F. 1996). Marijuana was planted in an officer’s briefcase. During the investigation to find the “planter,” the commander ordered a urinalysis. The accused tested positive for methamphetamines. Although the test triggered the subterfuge rule of Mil. R. Evid. 313(b), the government met its clear and convincing burden. The primary purpose for the inspection was to end the finger pointing and hard feelings caused by the investigation. The judge ruled the primary purpose was to “resolve the questions raised by the incident, not to prosecute someone.” The CAAF affirmed.
Knowledge of subordinates. United States v. Taylor, 41 M.J. 168 (C.M.A. 1994). Urinalysis test results were properly admitted, even though the urinalysis inspection followed reports that accused had used drugs and even though accused’s section was volunteered for inspection on basis of reports. Commander who ordered inspection was ignorant of reports. But see United States v. Willis, No. 96-00192, 1997 WL 658748 (N-M. Ct. Crim. App. Feb. 21, 1997) (unpublished).
United States v. Campbell, 41 M.J. 177 (C.M.A. 1994). Urinalysis test results were improperly admitted where urinalysis inspection was conducted because first sergeant heard rumors of drug use in unit and selected accused to be tested based on his suspicions. Judge erred in finding that government proved, by clear and convincing evidence, that inspection was not subterfuge for criminal search.
Primary Purpose.
United States v. Brown, 52 M.J. 565 (A. Ct. Crim. App. 1999). Several members of unit allegedly were using drugs. Because of this, the commander ordered random 30% inspection. The commander’s primary purpose was because he “wanted to do a large enough sampling to validate or not validate that there were drugs being used in his company, and he additionally was very concerned about the welfare, morale, and safety of the unit caused by drugs.” This met the primary purpose test of Mil. R. Evid. 313(b).
Targeting Soldiers for inspection. United States v. Moore, 41 M.J. 812 (N-M. Ct. Crim. App. 1995). Military judge improperly excluded urinalysis results where accused was placed in nondeployable “legal” platoon after an Article 15, and regimental commander inspected accused’s platoon more frequently than others. Commander did not target. More frequent tests were based on disciplinary problems.
Consent Urinalysis.
A urinalysis is constitutional if obtained with consent. Mil. R. Evid 314(e).
Consent must be voluntary under totality of the circumstances.United States v. White, 27 M.J. 264 (C.M.A. 1988).
If Soldier asks “what if I do not consent?” United States v. Radvansky, 45 M.J. 226 (C.A.A.F. 1996). Totality of the circumstances, not a bright-line rule, controls consent to urinalysis in the face of a command request. Notwithstanding First Sergeant’s comment that accused could “give a sample of his own free will or we could have the commander direct you to do so,” accused voluntarily consented to urinalysis. The mere remark that a commander can authorize a search does not render all subsequent consent involuntary.
But see United States v. White, 27 M.J. 264 (C.M.A. 1988). Consent is involuntary if commander replies that he or she will order urine test.
Consent is voluntary if commander meaningfully explains the consequences of a consent sample versus a fitness for duty or probable cause sample. United States v. White, 27 M.J. 264, 266 (C.M.A. 1988) (dicta). See also United States v. McClain, 31 M.J. 130 (C.M.A. 1990).
Probable cause may cure invalid consent. United States v. McClain, 31 M.J. 130 (C.M.A. 1990). Urinalysis was inadmissible where consent was obtained involuntarily even though commander had probable cause to order urinalysis. However, the Court stated that probable cause to order urine test may provide an alternative basis upon which to admit urine sample obtained through invalid consent where:
Consent. It’s OK to Trick. United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999). NCO told accused he needed to consent to urinalysis because of a head injury. Permissible to use trickery to obtain consent as long as it does not amount to coercion.
Medical Urinalysis. A urinalysis is constitutional if conducted for a valid medical purpose. Mil. R. Evid. 312(f).
1. A urinalysis test is constitutional if based upon probable cause. Mil. R. Evid. 312(d) and 315.
2. A positive urinalysis provides probable cause to seize hair sample for drug testing. United States v. Bethea, 61 M.J. 184 (C.A.A.F. 2005).
3. A warrant or proper authorization may be required.
Schmerber v. California, 384 U.S. 757 (1966). Warrantless blood alcohol test was justified by exigent circumstances.
United States v. Pond, 36 M.J. 1050 (A.F.C.M.R. 1993). Warrantless seizure of urine to determine methamphetamine use was not justified by exigent circumstances because methamphetamine does not dissipate quickly from the body.
Random Inspections.
A urinalysis is constitutional if it is part of a valid random inspection. Mil. R. Evid. 313(b); United States v. Gardner, 41 M.J. 189 (C.M.A. 1994).
The fact that the results of urinalysis inspections are made available to prosecutors did not make the inspection an unreasonable intrusion. (Note: This ruling has not been challenged since the U.S. Supreme Court’s decision in Ferguson v. City of Charleston, 532 U.S. 67 (2001), which found a similar policy unconstitutional). See also Skinner v. Railway Labor Executives, 489 U.S. 602 (1989) (urine tests of train operators involved in accidents are reasonable searches) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (urine testing of employees who apply to carry firearms or be involved in drug interdiction does not require a warrant). Chandler v. Miller, 520 U.S. 305 (1997) (to conduct urinalysis without probable cause, must show “special need”).
Authority to order urinalysis inspections. United States v. Evans, 37 M.J. 867 (A.F.C.M.R. 1993).
Commander of active duty squadron to which accused’s reserve unit was assigned had authority to order urinalysis inspection. But see United States v. DiMuccio, 61 M.J. 588 (A.F. Ct. Crim. App. 2005) (Commander of 162nd FW, a national guard unit, had no authority to order accused to submit to urinalysis because accused was at the time in “Title 10” status vice “Title 32” status even though accused was still part of 162nd FW); United States v. Miller, 66 M.J. 306 (C.A.A.F. 2008) (where urinalysis which was the product of an order issued by a civilian Air Reserve Technician who did not have command authority to issue the order, and thus was not incident to command, was unlawful).
Subterfuge under Mil. R. Evid. 313(b).
United States v. Shover, 45 M.J. 119 (C.A.A.F. 1996). Marijuana was planted in an officer’s briefcase. During the investigation to find the “planter,” the commander ordered a urinalysis. The accused tested positive for methamphetamines. Although the test triggered the subterfuge rule of Mil. R. Evid. 313(b), the government met its clear and convincing burden. The primary purpose for the inspection was to end the finger pointing and hard feelings caused by the investigation. The judge ruled the primary purpose was to “resolve the questions raised by the incident, not to prosecute someone.” The CAAF affirmed.
Knowledge of subordinates. United States v. Taylor, 41 M.J. 168 (C.M.A. 1994). Urinalysis test results were properly admitted, even though the urinalysis inspection followed reports that accused had used drugs and even though accused’s section was volunteered for inspection on basis of reports. Commander who ordered inspection was ignorant of reports. But see United States v. Willis, No. 96-00192, 1997 WL 658748 (N-M. Ct. Crim. App. Feb. 21, 1997) (unpublished).
United States v. Campbell, 41 M.J. 177 (C.M.A. 1994). Urinalysis test results were improperly admitted where urinalysis inspection was conducted because first sergeant heard rumors of drug use in unit and selected accused to be tested based on his suspicions. Judge erred in finding that government proved, by clear and convincing evidence, that inspection was not subterfuge for criminal search.
Primary Purpose.
United States v. Brown, 52 M.J. 565 (A. Ct. Crim. App. 1999). Several members of unit allegedly were using drugs. Because of this, the commander ordered random 30% inspection. The commander’s primary purpose was because he “wanted to do a large enough sampling to validate or not validate that there were drugs being used in his company, and he additionally was very concerned about the welfare, morale, and safety of the unit caused by drugs.” This met the primary purpose test of Mil. R. Evid. 313(b).
Targeting Soldiers for inspection. United States v. Moore, 41 M.J. 812 (N-M. Ct. Crim. App. 1995). Military judge improperly excluded urinalysis results where accused was placed in nondeployable “legal” platoon after an Article 15, and regimental commander inspected accused’s platoon more frequently than others. Commander did not target. More frequent tests were based on disciplinary problems.
Consent Urinalysis.
A urinalysis is constitutional if obtained with consent. Mil. R. Evid 314(e).
Consent must be voluntary under totality of the circumstances.United States v. White, 27 M.J. 264 (C.M.A. 1988).
- Consent is involuntary if commander announces his intent to order the urine test should the accused refuse to consent. Mil. R. Evid. 314(e)(4).
- Consent is voluntary if the commander does not indicate his “ace in the hole” (authority to order a urinalysis). United States v. White, 27 M.J. 264 (C.M.A. 1988). See also United States v. Whipple, 28 M.J. 314 (C.M.A. 1989). Consent was voluntary where accused never asked what options were and commander never intimated that he could order him to give a sample. See also United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999) (permissible to use trickery to obtain consent as long as consent was not coerced).
If Soldier asks “what if I do not consent?” United States v. Radvansky, 45 M.J. 226 (C.A.A.F. 1996). Totality of the circumstances, not a bright-line rule, controls consent to urinalysis in the face of a command request. Notwithstanding First Sergeant’s comment that accused could “give a sample of his own free will or we could have the commander direct you to do so,” accused voluntarily consented to urinalysis. The mere remark that a commander can authorize a search does not render all subsequent consent involuntary.
But see United States v. White, 27 M.J. 264 (C.M.A. 1988). Consent is involuntary if commander replies that he or she will order urine test.
Consent is voluntary if commander meaningfully explains the consequences of a consent sample versus a fitness for duty or probable cause sample. United States v. White, 27 M.J. 264, 266 (C.M.A. 1988) (dicta). See also United States v. McClain, 31 M.J. 130 (C.M.A. 1990).
Probable cause may cure invalid consent. United States v. McClain, 31 M.J. 130 (C.M.A. 1990). Urinalysis was inadmissible where consent was obtained involuntarily even though commander had probable cause to order urinalysis. However, the Court stated that probable cause to order urine test may provide an alternative basis upon which to admit urine sample obtained through invalid consent where:
- Commander deals directly with accused in requesting consent, and would have authorized seizure of urine based on probable cause but for belief that he or she had valid consent; or,
- Commander actually orders urinalysis based on probable cause, but relaying official asks for consent (which later is found to be invalid).
- Requesting consent is not interrogation under Article 31, UCMJ, or the Fifth Amendment. United States v. Schroeder, 39 M.J. 471 (C.M.A. 1994). Civilian police officer apprehended accused for suspected use of drugs and later asked if he would consent to a urinalysis. This question was not custodial interrogation under the Fifth Amendment.
- Attenuation of taint from prior unwarned admissions. United States v. Murphy, 39 M.J. 486 (C.M.A. 1994). Accused’s consent to urinalysis test was not tainted by prior admissions obtained prior to rights warnings. Prior questioning was not coercive and consent was given voluntarily.
Consent. It’s OK to Trick. United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999). NCO told accused he needed to consent to urinalysis because of a head injury. Permissible to use trickery to obtain consent as long as it does not amount to coercion.
Medical Urinalysis. A urinalysis is constitutional if conducted for a valid medical purpose. Mil. R. Evid. 312(f).
- United States v. Fitten, 42 M.J. 179 (C.A.A.F. 1995). Forced catheterization of accused did not violate the Fourth Amendment or Mil. R. Evid. 312(f) where it was medically necessary to test for dangerous drugs because of accused’s unruly and abnormal behavior. Diversion of a part of the urine obtained from medical test to drug laboratory to build case against accused was permissible. But see United States v. Stevenson, 66 M.J. 15 (C.A.A.F. 2008), which overrules Fitten “. . . to the extent that [it] . . . stand[s] for the proposition that there is a de minimus exception to the Fourth Amendment or to Mil. R. Evid. 312.”
- In the Army, most medical tests may only be used for limited purposes. AR 600-85, para. 10-13, and Table 10-1.
- Fitness for Duty Urinalysis.
- A commander may order a urinalysis based upon reasonable suspicion to ensure a Soldier’s fitness for duty even if the urinalysis is not a valid inspection and no probable cause exists. Results of such tests may only be used for limited purposes. United States v. Bair, 32 M.J. 404 (C.M.A. 1991). See AR 600-85, para. 10-13(a).
- Reasonable suspicion required for a fitness for duty urinalysis is the same as reasonable suspicion required for a “stop and frisk” under the Fourth Amendment. United States v. Bair, 32 M.J. 404 (C.M.A. 1991).
Military Drug Case Defenses and Strategies
The most common defense in drug cases is that the service member did not knowingly ingest the substance in question.
If you were to review Article 112 (a), UCMJ, you would notice that the use of an illegal drug is only prohibited when the use is wrongful. Using drugs is not wrongful when the service member lacks knowledge of the contraband nature of the drug.
If you were to review Article 112 (a), UCMJ, you would notice that the use of an illegal drug is only prohibited when the use is wrongful. Using drugs is not wrongful when the service member lacks knowledge of the contraband nature of the drug.
The Presumptive Inference
The government has written the following language into the law to make it easier to prosecute cases based on urinalysis tests.
"Knowledge of the presence of the controlled substance may be inferred from the presence of the controlled substance in the accused's body..."
The is called the presumptive inference.
Because of that language, defense counsel must have the skills to make the government expert toxicologist concede on cross-examination that an expert cannot tell from a urinalysis test whether a person knowingly ingested the banned substance.
"Knowledge of the presence of the controlled substance may be inferred from the presence of the controlled substance in the accused's body..."
The is called the presumptive inference.
Because of that language, defense counsel must have the skills to make the government expert toxicologist concede on cross-examination that an expert cannot tell from a urinalysis test whether a person knowingly ingested the banned substance.
A urinalysis does not prove:
1. Impairment
2. Method of ingestion
3. Number of uses
4. Knowing Use
Innocent and Accidental Ingestion
In the military, it is misconduct to knowingly and consciously use an illegal drug. The government must prove that the member knowingly and consciously used an illegal substance. If the positive urinalysis test was caused by the innocent or unknowing ingestion of a drug, then the member has not committed misconduct. Before attempting to present an innocent or unknowing ingestion defense or speaking to law enforcement, you must consult an attorney that understands military drug cases. Based on the nanogram count of your drug test, law enforcement might draw conclusions as to the amount of drug consumed, the likelihood that you experienced side effects, and the truthfulness of any statements you make.
There are differences between innocent and unknowing (accidental) ingestion. In an unknowing ingestion case, the defense is basically saying that we have no idea how it got in the member's system, but the member did not knowingly ingest it. Good military character is likely helpful in this type of case. An innocent ingestion defense is more like an alibi defense. With innocent ingestion, we are indicating that we know how the substance was consumed, but that the member did not knowingly or wrongfully consume it.
An innocent ingestion defense must be consistent with the science behind the drug test.
There are differences between innocent and unknowing (accidental) ingestion. In an unknowing ingestion case, the defense is basically saying that we have no idea how it got in the member's system, but the member did not knowingly ingest it. Good military character is likely helpful in this type of case. An innocent ingestion defense is more like an alibi defense. With innocent ingestion, we are indicating that we know how the substance was consumed, but that the member did not knowingly or wrongfully consume it.
An innocent ingestion defense must be consistent with the science behind the drug test.
For an innocent or accidental ingestion case, we will be asking questions such as:
-Where were you ever day and night during the detection window for the case?
-Were there witnesses at every period during the detection window who saw you sober?
-Were there any witnesses that will testify under oath that they caused you to innocently or unknowingly ingest the substance in question?
If there are witnesses can they testify to:
-How much of the edible product was consumed.
-When the edible product was consumed.
-A recipe for the products.
-If the THC concentration of the plant material or other substance is known.
-Whether anyone else is known to have consumed the product in the social setting.
-What effects were felt or observed.
-Whether the service member has good military character.
-Can we prove that you never experienced the side effects of the drug in question?
-Where were you ever day and night during the detection window for the case?
-Were there witnesses at every period during the detection window who saw you sober?
-Were there any witnesses that will testify under oath that they caused you to innocently or unknowingly ingest the substance in question?
If there are witnesses can they testify to:
-How much of the edible product was consumed.
-When the edible product was consumed.
-A recipe for the products.
-If the THC concentration of the plant material or other substance is known.
-Whether anyone else is known to have consumed the product in the social setting.
-What effects were felt or observed.
-Where were you ever day and night during the detection window for the case?
-Were there witnesses at every period during the detection window who saw you sober?
-Were there any witnesses that will testify under oath that they caused you to innocently or unknowingly ingest the substance in question?
If there are witnesses can they testify to:
-How much of the edible product was consumed.
-When the edible product was consumed.
-A recipe for the products.
-If the THC concentration of the plant material or other substance is known.
-Whether anyone else is known to have consumed the product in the social setting.
-What effects were felt or observed.
-Whether the service member has good military character.
-Can we prove that you never experienced the side effects of the drug in question?
-Where were you ever day and night during the detection window for the case?
-Were there witnesses at every period during the detection window who saw you sober?
-Were there any witnesses that will testify under oath that they caused you to innocently or unknowingly ingest the substance in question?
If there are witnesses can they testify to:
-How much of the edible product was consumed.
-When the edible product was consumed.
-A recipe for the products.
-If the THC concentration of the plant material or other substance is known.
-Whether anyone else is known to have consumed the product in the social setting.
-What effects were felt or observed.
APPELLATE CASES ADDRESSING INNOCENT INGESTION
Can witnesses testify that they observed no behavior from the accused consistent with drug? Yes.
See United States v. Brewer. 61 M.J. 425 (C.A.A.F. 2005) Brewer is a case where the appellate court noted that the testimony of witnesses who were with an accused and observed the accused's behavior during the relevant time frame and saw no evidence of drug use provides grounds for jury members to question the permissive inference.
The court stated that the very nature of an innocent ingestion defense in a use-of-drugs case means that an accused cannot prove the time or place of his innocent ingestion, but can only suggest possible explanations.
In a trial, RCM 701(b)(2) requires disclosure of witnesses to innocent ingestion, other than the accused, only if an accused intends to call such witnesses and does not otherwise limit the right of the accused to testify in his/her own behalf.
Can the government use circumstantial evidence to disprove an innocent ingestion defense? Yes.
United States v. Hall, No. 58 MJ 90 (C.A.A.F. 2003). Evidence of urinalysis tests, their results, and expert testimony explaining them is sufficient to permit a factfinder to find beyond a reasonable doubt that an accused used contraband drugs.
Does RCM 701 (b)(2) require presentation of corroborating witnesses? No. The accused may testify to satisfy the rule.
United States v. Lewis, 51 MJ 376 (C.A.A.F. 1999) RCM 701(b)(2) requires disclosure of witnesses to innocent ingestion, other than the accused, only if an accused intends to call such witnesses and does not otherwise limit the right of the accused to testify in his/her own behalf.
See United States v. Brewer. 61 M.J. 425 (C.A.A.F. 2005) Brewer is a case where the appellate court noted that the testimony of witnesses who were with an accused and observed the accused's behavior during the relevant time frame and saw no evidence of drug use provides grounds for jury members to question the permissive inference.
The court stated that the very nature of an innocent ingestion defense in a use-of-drugs case means that an accused cannot prove the time or place of his innocent ingestion, but can only suggest possible explanations.
In a trial, RCM 701(b)(2) requires disclosure of witnesses to innocent ingestion, other than the accused, only if an accused intends to call such witnesses and does not otherwise limit the right of the accused to testify in his/her own behalf.
Can the government use circumstantial evidence to disprove an innocent ingestion defense? Yes.
United States v. Hall, No. 58 MJ 90 (C.A.A.F. 2003). Evidence of urinalysis tests, their results, and expert testimony explaining them is sufficient to permit a factfinder to find beyond a reasonable doubt that an accused used contraband drugs.
Does RCM 701 (b)(2) require presentation of corroborating witnesses? No. The accused may testify to satisfy the rule.
United States v. Lewis, 51 MJ 376 (C.A.A.F. 1999) RCM 701(b)(2) requires disclosure of witnesses to innocent ingestion, other than the accused, only if an accused intends to call such witnesses and does not otherwise limit the right of the accused to testify in his/her own behalf.
Drug Collection and Lab Errors
Common Drug Lab Discrepancy Codes
Switched or Mislabelled Samples
This requires proof that the drug samples were mishandled. There have been examples over the years of collection personnel mislabeling samples, mishandling samples, or even making mistakes with personal identifying information. We can sometimes have samples retested.
Does all information on the bottle label match the DD Form 2624?
Is the correct Command name listed in Block 1?
Does the UIC/RUC match the Command listed in Block 1?
Are the specimens listed on the DD Form 2624 either present or voided on the form?
Are any changes to the SSN on the DD Form 2624 and specimen bottle label(s) dated and initialed?
Is the batch number in Block 5 present and does it match the batch number on the bottle labels?
Is a chain of custody documented on the back of the DD Form 2624?
Does the collection date on the bottle match the DD Form 2624 collection date?
This requires proof that the drug samples were mishandled. There have been examples over the years of collection personnel mislabeling samples, mishandling samples, or even making mistakes with personal identifying information. We can sometimes have samples retested.
Does all information on the bottle label match the DD Form 2624?
Is the correct Command name listed in Block 1?
Does the UIC/RUC match the Command listed in Block 1?
Are the specimens listed on the DD Form 2624 either present or voided on the form?
Are any changes to the SSN on the DD Form 2624 and specimen bottle label(s) dated and initialed?
Is the batch number in Block 5 present and does it match the batch number on the bottle labels?
Is a chain of custody documented on the back of the DD Form 2624?
Does the collection date on the bottle match the DD Form 2624 collection date?
False Positive or Laboratory Error
Here are real-world examples of lab errors:
-Mishandle samples during the collection process;
-Improper shipping can causing leakage and cross-contamination;
-There can be rack jams during automated preliminary screening;
-Samples can be diluted by the drug lab with "certified" clean urine that can result in potential errors in the dilution process and the mathematics of calculating the results;
-Contaminated tubes and equipment are possible at the lab; and,
-Paperwork can be incorrectly processed at the drug lab.
A close review of the drug lab report is necessary to ensure that procedures were followed.
Here are real-world examples of lab errors:
-Mishandle samples during the collection process;
-Improper shipping can causing leakage and cross-contamination;
-There can be rack jams during automated preliminary screening;
-Samples can be diluted by the drug lab with "certified" clean urine that can result in potential errors in the dilution process and the mathematics of calculating the results;
-Contaminated tubes and equipment are possible at the lab; and,
-Paperwork can be incorrectly processed at the drug lab.
A close review of the drug lab report is necessary to ensure that procedures were followed.
Department of Defense Instruction 1010.01 - Military Personnel Drug Abuse Testing Program (MPDATP)
Establishes guidance and creates the drug testing program.
Department of Defense Directive 1010.04 - Drug and Alcohol Abuse by DoD Personnel
Sets policies for creating rehabilitation and counseling programs - among other things.
Department of Defense Instruction 1010.16 - Technical Procedures for the Military Personnel Drug Abuse Testing Program (MPDATP)
Sets cutoff levels and testing guidance.
Air Force Drug Demand Reduction Program
Army Regulation 600-85
Coast Guard Drug and Alcohol Policy
Navy MILPERSMAN 1910-146 - Separation by Reason of Misconduct - Drug Abuse
Establishes guidance and creates the drug testing program.
Department of Defense Directive 1010.04 - Drug and Alcohol Abuse by DoD Personnel
Sets policies for creating rehabilitation and counseling programs - among other things.
Department of Defense Instruction 1010.16 - Technical Procedures for the Military Personnel Drug Abuse Testing Program (MPDATP)
Sets cutoff levels and testing guidance.
Air Force Drug Demand Reduction Program
Army Regulation 600-85
Coast Guard Drug and Alcohol Policy
Navy MILPERSMAN 1910-146 - Separation by Reason of Misconduct - Drug Abuse
