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.
More often than not, drug cases are disposed of 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. Aggressive civilian counsel can be valuable in helping a commander decide not to prosecute drug cases at a court-martial.
While the there are a number of factors to consider in analyzing a urinalysis test result, here are a few things to remember. 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.
-Single or multiple usage.
-The method of ingestion.
-Whether the service member knowingly ingested the substance.
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..."
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.
Most drug defenses fall into the following categories:
Switched samples. This requires proof that the drug samples were mishandled.
False positive test result or laboratory error.
Illegal or unconstitutional test.
Good military character.
Experienced defense counsel will understand the science of the testing process. Counsel will also know the approximate drug detection times for every tested substance. When we do our free consultation, we will often want to discuss your activities during the period within the drug detection window before the urinalysis test.
A legal consultation is also 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.
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.
The bottom line is that drug cases can be complicated. Experienced defense counsel can make a significant difference in your case.
Chart of Common Drug Screening Cutoff Levels for GC/MS Testing
For background purposes, GC/MS stands for 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.
Marijuana (THC) - 15 ng/ml
Cocaine (BZE) - 100 ng/ml
Amphetamines - 100 ng/ml
Designer Amphetimines (MDMA, MDA, MDEA) - 500 ng/ml
Morphine - 4000 ng/ml
Codeine - 2000 ng/ml
Oxycodone / Oxymorphone 100 ng/ml
6-monoacetylmorphine (heroin) - 10 ng/ml
Phencyclidine (PCP) - 25 ng/ml
Approximate Drug Detection Windows
It is extremely important to note that these are general drug detection windows.
Multiple variables can affect the actual detection window including:
method of ingestion
history of usage
drug metabolism and half-life
fluid intake prior to test
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.
Half Life - Anywhere from 20-36 hours
1-2 joints - 2-3 days
Eaten - 1-5 days
Moderate Smoker - 5 days
Heavy Smoker - 10 days
Chronic Smoker - 14-20 days
Half life - 6-8 hours
2-4 day window
2-4 days if heavily used
Short-acting / secobarbital - 1 day
Long acting / phenobarbital - 2-3 weeks
Performance Enhancing Drugs
Command Urinalysis Program
Independent Testing of Urine Samples
Drug Case Blog Articles
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