MILITARY DRUG OFFENSE LAWYERS

Defense Counsel for Drug Crime Court-Martials

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.

More often than not, drug cases are resolved through administrative processing for separation. The Air Force tends to prosecute more cases at courts-martial than the other branches. 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 educate members of an administrative separation board on the science behind 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.

Aggressive counsel can be valuable in helping a commander decide not to prosecute drug cases at a court-martial. Call Daniel Conway & Associates military drug crime attorneys today at (757) 401-6365.

What Are the Commander's Options?

A commander has several options when taking action against drug crimes:

• Courts-Martial – Court-martial procedures are complex and the Military Rules of Evidence apply.
• Nonjudicial Punishment – Nonjudicial punishment procedures are relatively simple. See U.S. DEP’T OFARMY, REG. 27-10, MILITARY JUSTICE ch. 3 (3 Oct. 2011).
• Reservists – Reservists may not receive nonjudicial punishment under Article 15 for drug use unless use occurred while on federal duty. See Article 2(d)(2) (reserve component personnel may be involuntarily recalled to active duty for nonjudicial punishment only with respect to offenses committed while on federal duty) and United States v. Chodara, 29 M.J. 943 (A.C.M.R. 1990).
• Administrative Separations – All soldiers who are identified as illegally abusing drugs will be processed for administrative separation. AR 600-85, para. 10-6. Mandatory processing does not mean mandatory separation. Commander may recommend retention if warranted.
  Rules at administrative separations are simpler than at a courts-martial. See U.S. DEP’T OF ARMY, REG. 15-6, PROCEDURES FOR INVESTIGATING OFFICERS ANDBOARDS OF OFFICERS (2 Oct. 2006) [hereinafter AR 15-6].

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.

What are the regulations (updating with all branches of service)?

• 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

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.

How Are Drug Samples Tested in the Military?

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

A Urinalysis Test Does Not Prove

• Impairment – Under some circumstances, a service member can unknowingly test positive for a banned substance having never experienced the side effects of the drug.
• Number of Uses – Single or multiple usage.
• Method of Ingestion – Whether the service member knowingly ingested the substance.

What Happens if You Fail a Military Drug Test?

Depending on your military branch, if you receive a positive drug test result, you may be subject to the following consequences:

• Court-martial
• Nonjudicial punishment pursuant to Article 15 and discharge
• Mast/NJP followed by an administrative discharge proceeding