Marijuana, the military, innocent ingestion, and the pot brownie defense

In recent months, this firm has seen an uptick in the number of marijuana cases in the military. Marijuana is increasingly available as states across the country decriminalize the drug.

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The military, however, maintains a zero-tolerance attitude towards illegal drugs of any kind. As edible marijuana products become more popular, the risk of a positive urinalysis from consuming edibles at social events increases.

I’ve had several cases this year involving the innocent ingestion of marijuana through edible products. One senior enlisted Sailor even consumed a pot brownie at a church gathering. The threat is real.

I’m also having success presenting a “pot brownie” innocent ingestion defense. Innocent ingestion defenses involving edible products have two components. There is a scientific aspect to the case and a need to present witnesses and evidence of the innocent ingestion. When those two elements are met, we tend to be successful.

The Science

Interestingly, marijuana-laced brownies and urinalysis tests have not been studied extensively. There is really only one study on the issue. It's the Cone and Buddha study titled "Marijuana-Laced Brownies: Behavioral Effects, Physiologic Effects, and Urinalysis in Humans Following Ingestion." It's a 1988 study that has been admitted as an exhibit in public hearings countless times.

Basically, 5 subjects ingested marijuana-laced brownies in a double-blind crossover study. A double-blind crossover means at some point in the study, all of the participants switch from an active substance to placebo or vice versa.

The study is a little dated. They used marijuana with a concentration of 2.8% THC. Nowadays, you can purchase marijuana legally with as much as 24% THC. The brownies in the study had 1.6g of marijuana plant material. That is the equivalent of 2 standard 800mg marijuana cigarettes with a 2.8% concentration. They were tested at intervals for over 3 days up to two weeks.

Most subjects felt the effects of the marijuana between 30 minutes to 3.5 hours after ingestion. For the most part, all they really measured was pulse rate standing and sitting, respiration, and pupil dilation. Changes were modest - never more than 20% from baseline readings. Subjects tested positive anywhere from 3 to 14.5 days after ingestion. The two-week period, of course, involved small amounts.

The takeaway for modern innocent ingestion defenses is that people tend to eat more than two brownies and modern concentrations of THC in edible products is exponentially higher than in 1988.

The Evidence

When we're pursuing a "pot brownie" defense we want to look for the following pieces of evidence:

-Witnesses that can testify how much of the edible product was consumed;
-When the edible product was consumed;
-The testimony of the person who prepared the edible products is always helpful;
-A recipe for the products;
-If the THC concentration of the plant material is known;-
-Whether anyone else is known to have consumed the product in the social setting;
-What effects were felt.
-Whether the service member has a good military character.

When we can answer these questions in a manner that is consistent with the science - in other words, the numbers and nanogram count makes sense - we tend to have success.

Marijuana-Laced Brownies: Behavioral Effects, Physiologic Effects, and Urinalysis in Humans Following Ingestion.
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