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:
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.
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.
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.
False Positive Drug Test Result Or Laboratory Error
Here are real-world examples of lab errors:
- Mishandle samples during the collection process
- Improper shipping 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
- 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.
Illegal or Unconstitutional Tests
A legal consultation is advisable where there is a question as to whether the command had probable cause to conduct the drug testing in the first instance. There are a number of different circumstances where commands can engage in subterfuge to conduct criminal searches or drug testing. Defense counsel should aggressively protect your constitutional rights.
The nature of the drug test is also important because some tests only have limited uses. Defense counsel must be vigilant in those cases because limited use drug tests must ordinarily result in an honorable discharge. You must be wary of command-directed tests.
In the military, a urinalysis command directed test 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 are 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.
Generally, in all of the branches, limited use policies limit the 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).
PTSD, Self-Medication & Good Military Character
Another important consideration involves cases of self-medication. These cases are becoming increasingly common. There is often an associated mental health concern. Civilian defense counsel can be very beneficial in assisting the service member in those cases in getting the help that he or she needs.
Good military character can also be a defense in drug cases.
Below are templates for character letters:
- Sample character for truthfulness declaration
- Sample character letter
- Sample court questions for good military character under rule of evidence 405
- Sample court questions for opinion of drug use under rule of evidence 701
You can discuss your defense options when charged with a drug crime in the military by calling (757) 401-6365 and scheduling a free consultation with our military criminal defense lawyers.
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Daniel Conway Partner
For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...Read More
Gary Myers Partner
Gary Myers is a former JAG officer and one of the most experienced civilian military defense counsel in the country. He attended the University of Delaware where he received his undergraduate degree in chemical engineering in 1965. Gary Myers served as president of his freshman, sophomore and junior classes and went on in his senior year to be president of the student body. Gary Myers then attended the Pennsylvania State University, Dickinson School of Law, and graduated in 1968. Gary Myers paid his way through law school by ...Read More
Brian Pristera Attorney
A Richmond, Virginia native, Mr. Pristera graduated from Virginia Commonwealth University with a degree in Mechanical Engineering. After spending some time as a DuPont engineer, specifically working on Kevlar manufacturing and ballistics applications, Mr. Pristera attended law school at the University of New Hampshire. On July 4, 2010, Mr. Pristera was commissioned in the U.S. Army in the Judge Advocate General’s Corps. Mr. Pristera spent almost six years on active duty. He spent just over three of those years in criminal defense, ...Read More
Joseph Galli Attorney
Originally from Portland, Maine, Mr. Galli attended Elmira College in New York on a four-year Army ROTC Scholarship. At Elmira, he double majored in Business Administration and Public Affairs. Mr. Galli graduated from Elmira College in 2009 with a Bachelor of Science degree and was Commissioned as a Second Lieutenant in the United States Army. Mr. Galli began his study of the law in 2009 at the University of New Hampshire School of Law. There, he focused on litigation and honed his advocacy skills as a member of the Advanced Trial ...Read More
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