Drug Offenses

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Experienced Defense Against Military Drug Charges

Your military career might be one of your greatest sources of pride. Serving your nation and being willing to make the ultimate sacrifice are among the noblest choices a person can make.

Then, a drug test just came back positive. Maybe your unit had been randomly selected, or it was part of standard operating procedure. There may be probable cause. Whatever the reason for the test, a positive result might make you panic. You might’ve had no reason to suspect there’d even be a positive test result. You might worry about what happens next. Or fear that your military career will come to a swift end. How can you keep your service record honorable?

These are not unfounded concerns, but you do have options. Commanders typically charge a positive urinalysis (positive UA or failed UA) under Article 112a, UCMJ, or Article 92, UCMJ, depending on the substance. Following positive urinalysis results, the commanding officer may take any number of courses. These include non-judicial punishment, court-martial, and likely administrative separation.

While every situation is different, having a trusted military drug crimes lawyer in your corner can help. They can help their clients understand how the military judicial system works. Military drug crime lawyers can also help their clients keep their careers on track and military benefits intact.

Daniel Conway & Associates have years of worldwide experience defending servicemembers in drug-related cases. Get answers during a free consultation within 24 hours of contacting us.  No matter the branch or base, we know how to defend our clients’ distinguished military service.

The military is one of the only jurisdictions in the country that can 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 court-martial than the other branches. If you are facing an administrative separation board, defense counsel’s experience can be critical. In an administrative separation case, the resources for expert assistance from a toxicologist or chemist are often unavailable. 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. Some units are excessively aggressive in prosecuting urinalysis cases.

Service Members Know And Trust Our Team

A good lawyer is critical because the military is one of the only jurisdictions that can criminally prosecute drug cases based only on a failed urinalysis test or a failed drug test. Critically, the drug test cannot determine whether you knowingly ingested a controlled substance. A military drug crimes lawyer can help determine if there was, in fact, a valid reason for the urinalysis test, if the test can be admitted as evidence in the cases, and whether the test results support that you knowingly ingested the substance.

How Long Does It Take for the Unit to Receive Test Results?

The military’s notification of failed drug test time frame can vary. Negative results are usually posted on the web portal for program managers within 1-3 days of receiving specimens at the lab. Positive results are generally posted on the portal within 3-5 days of receiving specimens at the lab.

How Are Drug Samples Tested in the Military?

Gas chromatography/mass spectrometry or liquid chromatography/mass spectrometry. Gas chromatography uses an inert gas to carry the urine through separation columns. The samples are separated by boiling temperature and attraction to liquid or gaseous phases. Lab technicians identify compounds by their separation times (retention times). The sample is ionized after the compounds are broken down (bombarded with electrons). That process eventually produces a molecular fingerprint read by a mass spectrometer. When used correctly, courts consider the results to be highly accurate.

It is essential 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 military drug detection windows during hearings. A sample tests positive when the drug’s concentration reaches one of the military’s drug test cut-off levels below:

Military 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 before the test

The method of ingestion and amount ingested also make it less likely that a military drug test would detect secondhand smoke.

Commander’s Options Post-Positive Result

If a positive result appears, it goes up to the service member’s immediate commanding officer, who may have ordered the test in the first place. The decision to prosecute a drug or urinalysis case can also be heavily personality-dependent on the command. Some units are excessively aggressive in prosecuting urinalysis cases. Generally speaking, a commander has several options when taking action against drug crimes:

Exercise Discretion to Determine that the Drug Use was not Wrongful

One of the most impactful things we can do as your military lawyer is to assist in determining the cause of the positive urinalysis and advocate the command that the use was not wrongful.

All branches have regulations empowering the commander to decide that positive urinalysis was not wrongful. That determination can sometimes result in the command taking no action. Each branch has its code which explains these policies:

• Navy and Marine Corps SECNAVINST 5300.28F and MILPERSMAN 1910-146: Permits a commander to determine a use of drugs was not wrongful.  We believe the SECNAVINST applies to the Marine Corps because the separations and retirement manual is silent on discretion issues.
• Coast Guard COMDTINST M1000.10A: This regulation is similar to the Navy regulations and permits a commander to determine that a drug was unknowingly ingested.
• Army Drug Testing Regulation 600-85: This can be read to authorize commanders to make a preliminary determination that a drug use was illegal also.

Nonjudicial Punishment

The Uniform Code of Military Justice authorizes nonjudicial punishment. In nonjudicial punishment, the commanding officer conducts a hearing to be convinced by a preponderance of the evidence of their subordinate’s guilt. When commanders accuse service members, they may speak with an attorney before the hearing and receive counsel to prepare. Service members may request a court martial before nonjudicial punishment is ordered. We typically prepare a written argument for the commander for NJP.

Administrative Separations

If the commander determines there is no justification for the positive urinalysis, processing for separation is mandatory in all branches. Mandatory processing does not mean mandatory separation. The commander may recommend retention if warranted. Rules at administrative separations are simpler than at a court-martial.

Courts-Martial

Court-martial procedures are complex, and the Military Rules of Evidence apply. There are three levels of court-martial, and the level depends on the severity of the crime and the proportional punishment for the crime. At the lowest level are Summary courts-martial, which apply to crimes where the punishment is at most one-month confinement. Above summary court-martials are Special courts-martial, which try more serious offenses that carry up to six months of confinement. At the highest level are General courts-martial which handle the most severe offenses and which may include capital offenses or those crimes that carry the death penalty.

Reservists

Reservists may not receive nonjudicial punishment under Article 15 for drug use unless use occurred while on federal duty. According to Article 2(d)(2), reservists may be involuntarily recalled to active duty for nonjudicial punishment only concerning offenses committed while on federal duty.

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.

More often than not, though, drug cases are resolved through administrative processing for separation. Each branch has guidelines for initiating an administrative separation procedure (see below), which is mandatory. The administrative separation process is not a foregone conclusion. For example, the Air Force drug tests tend to lead to more cases at court-martial than the other branches.

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.

If you are facing an administrative separation board, defense counsel’s experience can be critical. In an administrative separation case, the resources for expert assistance from a toxicologist or chemist are often unavailable. 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.

Mandatory Processing Regulations for Administrative Separation By Branch

• Department of Defense Instruction 1010.01: The Department of Defense oversees all military branches and established the Military Personnel Drug Abuse Testing Program (MPDATP). MPDATP establishes guidance regarding drug abuse and creates a drug testing program.
• Department of Defense Directive 1010.04: This directive outlines Drug and Alcohol Abuse by DoD Personnel and sets policies for creating rehabilitation and counseling programs for personnel and service members.
• Department of Defense Instruction 1010.16: Technical Procedures for the Military Personnel Drug Abuse Testing Program (MPDATP) sets cutoff levels and testing guidance. The cutoff levels trigger a positive test result.
• Air Force Drug Demand Reduction Program: The Air Force drug test program for implementing the DoD’s MPDATP. Lays out the rules and procedures for testing, investigation, and disciplinary action.
• Army Drug Testing Regulation 600-85: The Army’s complement to MPDATP stipulates the mandatory processing for administrative separation.
• Coast Guard Drug and Alcohol Policy: Establishes Coast Guard standards for disciplining drug and alcohol abusers and adjudicating those offenses.

Navy MILPERSMAN 1910-146:  Establishes the Navy and Marine Corps policies regarding separation because of drug abuse misconduct.

Accurate Testing Doesn’t Mean Accurate Conclusions

While courts regard Urinalysis Tests as highly accurate and, therefore, reliable, they do have limitations. A positive test result does not automatically imply or signal the testee’s abuse or misconduct. An even more highly regarded military drug crimes lawyer will understand the test limitations. Crucially, they can point these limitations out to fact-finders in the military. These limitations include:

• Impairment: Under some circumstances, a service member can unknowingly test positive for a banned substance, having never experienced the side effects of the drug. The drug test – if the metabolite count is low – may not be indicative of a knowing use.
• Number of Uses: A positive urinalysis test cannot determine whether the service member used the drug once or multiple times.
• Method of Ingestion: Whether the service member knowingly ingested the substance. It is critical in a positive urinalysis test to work with a member of our team to determine the cause of the positive urinalysis.

Knowing these limitations becomes vital if the failed urinalysis test is the only evidence. A strong lawyer, well-versed in military drug crimes, may use this information to make it harder to prove there was a willful pattern of repeated drug abuse. That could be important in deciding whether the conduct merits harsher punishment.

How Does Our Firm Approach Strategy Decisions in Positive Urinalysis Cases?

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. Having a knowledgeable lawyer is important because the military allows a “presumptive inference” to be made by the fact-finder. That means that the Commander, separation board, or jury can presume that a service member knowingly used a substance based on the results of the failed urinalysis. You need experienced counsel to overcome that presumptive inference.

Cause of Positive UA

First, when you contact our firm, we will want to explore what caused the positive urinalysis. A positive urinalysis will not tell a Commander whether you were (1) impaired, (2) how you ingested it, (3) the frequency of use, and (4) whether you intentionally ingested it. So generally, we are looking for evidence that you were not impaired, that you do not regularly use the substance, and that you did not know you consumed the substance.

Innocent Ingestion

Second, under UCMJ Article 112a, it is a crime to knowingly and consciously use an illegal drug. The member has not committed misconduct if innocent or unknowing drug ingestion caused the positive urinalysis test.

There are differences between innocent and unknowingly (accidentally) ingestion.  In an unknowing or accidental ingestion case, the defense is saying that we have no idea how it got into the member’s system. Still, the member did not knowingly ingest it. Good military character is likely helpful in this type of case.  An innocent ingestion defense is more like an alibi defense. With innocent ingestion, we indicate that we know how the service member consumed the substance but that the member did not knowingly or wrongfully consume it.

An innocent ingestion defense must be consistent with the science behind the drug test.  The military appellate courts have addressed innocent ingestion defenses a few times.  In Brewer, the Court permitted the defense to call witnesses to testify that they observed no behavior from the accused consistent with drugs. 61 M.J. 425 (C.A.A.F. 2005). That testimony was crucial for overcoming the presumptive inference.

In Hall, the court let government experts use circumstantial evidence to disprove an innocent ingestion defense. 58 M.J. (C.A.A.F. 2003). Experienced counsel is essential because they understand precedent and apply it in their client’s best interest.

Lab Error

Third, we want to review the drug lab report carefully.  It is difficult to prove laboratory error, but human error does occasionally occur. 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. ​

Here are real-world examples of lab errors:

• Mishandle samples during the collection process;
• Improper shipping can 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; and,
• Technicians can incorrectly process paperwork at the drug lab.

A close review of the drug lab report is necessary to ensure lab technicians follow procedures. ​

Legality of Search

Finally, we want to look at whether the search was illegal.

A warrant or proper authorization might be required for a probable cause urinalysis. In those cases, we closely scrutinize the information the commander used to order the urinalysis.

A urinalysis is constitutional if it is part of a valid random inspection. Mil. R. Evid. 313(b); United States v. Gardner, 41 M.J. 189 (C.M.A. 1994). In these cases, we want to look closely at who ordered the inspection and whether they had proper authority.  We also want to examine whether the service member is being targeted.  It is also constitutional if it is for medical purposes.

Consent searches can be more complicated.  Consent is involuntary if the commander announces his intent to order the urine test should the accused refuse to consent. Mil. R. Evid. 314(e)(4). Consent is voluntary if the commander does not indicate his “ace in the hole” (authority to order a urinalysis). United States v. White, 27 M.J. 264 (C.M.A. 1988). See also United States v. Whipple, 28 M.J. 314 (C.M.A. 1989). Consent was voluntary, where the accused never asked what options were and the commander never intimated that he could order him to give a sample. See also United States v. Vassar, 52 M.J. 9 (C.A.A.F. 1999) (permissible to use trickery to obtain consent as long as consent was not coerced).

Understanding the Consequences of Military Drug Offenses

Being charged with a drug offense in the military can have serious consequences, including potential court-martial, dishonorable discharge, and loss of benefits. It’s crucial to understand the severity of these charges and the impact they can have on your military career and future opportunities.

Our experienced team of military defense lawyers at Daniel Conway & Associates can provide you with the guidance and representation you need to navigate the legal process and protect your rights. We are dedicated to helping service members facing drug offense charges and will work tirelessly to build a strong defense on your behalf.

Some potential consequences of military drug offenses include:

Court-martial proceedings

Court-martial proceedings may commence if the commanding officer decides to open them or the accused service member requests a court-martial before nonjudicial punishment is handed down. Depending on the severity of the incident, these may be summary, special, or general courts-martial. In special or general courts-martial counsel for the defense is expected.

General Under Honorable or Other Than Honorable Discharge

If the administrative separation leads to a discharge, it may come as an Other Than Honorable (OTH). This will be indicated on the DD-214 form that characterizes the service member’s military career.  An Other Than Honorable discharge is less severe than a Dishonorable discharge, though both are considered “bad paper discharge.” They also will likely lead to consequences in civilian life.

Loss of Benefits and Privileges

With Other Than Honorable or Dishonorable discharges comes the loss of benefits and privileges in civilian life. Housing benefits from the VA are stripped, GI Bill benefits are not available, and care at the VA is limited.

Negative Impact on Future Career Opportunities

Future civilian employers that see OTH or Dishonorable Discharges will want to know why the service member was “fired” from the military. This may make finding employment more difficult than expected after a military career.

Potential Incarceration

If the level of the offense merits a court-martial, there is a risk of incarceration. The length of incarceration depends on which court-martial is opened, with General courts-martial allowing for the longest periods of incarceration.

Don’t Let One Test Jeopardize Your Career

If you are facing charges of military drug offenses, seeking legal counsel as soon as possible is essential. The decisions made in response to drug-related incidents in the military carry profound implications for service members’ careers beyond their service. Navigating this complex terrain can be too heavy a burden for even the most dedicated and disciplined service members. A failed drug test and the swift repercussions that follow demand a thorough understanding of regulations, precise analysis of drug testing processes, and careful consideration of the potential outcomes. Who can you turn in your unit for this?

Having reliable, steadfast counsel to notify you of your rights, the evidence, and the procedures ahead can make all the difference. No one enters the military expecting a drug crime charge, and the fear of the unknown can be paralyzing. Instead, take action and trust our globally experienced drug defense team to answer your questions in a free consultation. No matter the branch, no matter the base, we build the case.