In the last week, we’ve received multiple phone calls from service
members with questions about the legality of a urinalysis. This post will
shed some light on those kinds of questions.
First of all, in the military, a urinalysis is constitutional if it is
based upon probable cause. Military Rule of Evidence 312 (d) and 315.
Rarely do we see cases involving hair samples, but the appellate courts
have ruled that a positive urinalysis also provides probable for a hair sample.
US v. Bethea, 61 M.J. 184 (C.A.A.F. 2004).
In cases where the test was conducted without probable cause, the exceptions
to the probable cause requirement apply. There are lots of exceptions
– good faith exception, exigent circumstances exceptions, etc.
Most positive urinalysis’ in the military is the result of “random”
inspections. Military Rule of Evidence 313 (b) permits random inspections.
Sometimes we can challenge the authority of the commander to order the
inspection. Every now and then a civilian employee orders the inspection
or some person other than the commander.
It’s not uncommon for subterfuge to be used in ordering a urinalysis.
The classic example is the first sergeant who takes steps to initiate
a urinalysis based on rumors. Under
US v. Campbell, 41 M.J. 177 (C.M.A. 1994) that inspection probably will not hold up.
A urinalysis conducted for a valid medical purpose is also constitutional
under Military Rule of Evidence 312 (f). Whether the medical purpose was
valid or not may be an entirely different question.
In the Army – for example – regulations limit the uses of
a medical urinalysis. AR 600-85, para. 10-13.
Generally, in all of the branches, limited use policies limit use of competence
for duty tests and medical tests.
If drug use is discovered during a limited use test, the service member
must receive an honorable discharge.
Where most people have confusion about test results is when it comes to
administrative separations. Unfortunately, evidence obtained in violation
of the constitution is admissible in an administrative separation or nonjudicial
punishment unless it was obtained in bad faith (the testing officials
knew it was unlawful).
If you have questions about the legality of a drug test, call a lawyer.
We’re happy to help. There is lots of bad advice on the internet.
People call us all the time with incorrect information and high hopes
that their urinalysis results will be excluded from evidence.
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