7 Common Myths: Military Drugs Cases (Article 112a UCMJ)
Military drug cases are common. So are the myths and misinformation surrounding them. If you are facing a drug court-martial or criminal investigation, know the facts and be prepared.
The best defense against drug charges is not using drugs at all. In most civilian States, it is not illegal to have drugs in your body: it is illegal to possess them or to give them to some one else. This is not so in the military. Any use of any drug to alter mood or function can be illegal and punished under Article 112a UCMJ. It doesn’t matter whether the drugs or other substances are legal or not.
There are many myths about drug tests in the military. This post discusses them below.
1. If you test positive, you’re guilty.
False. If you test positive, it tells you that you have an illegal substance in your system. Under Article 112a of the UCMJ, drug use is not illegal unless it is knowing and conscious. This means not only do you have to have drugs in your body, you had to know they were there.
Illegal drugs can get into your system without your knowing it. Cocaine and other drugs are extremely popular in the United States. Many people use them in bars and clubs. Cocaine can end up on bars, in bathrooms, and other places. It only takes a small amount of cocaine to make you test positive for cocaine— so small that you might not even feel it. In some cases, date rape or other drugs mixed into your food or drink can make you test positive on a military drug test. I’ve also successfully defended cases where the person who tested positive simply took someone else’s prescription by mistake.
The military tests millions of samples a year. Given the amount of samples tested, the law of odds tell us that some innocent people will be unlucky and test positive even though they didn’t knowingly take any drugs. No drug test expert will ever tell you that a positive drug test tells you anything about how the drug got into anyone’s system.
2. The military doesn’t test for prescription drugs.
False. Military drug labs have always tested for prescription drugs on a limited basis. They are expanding this more and more. If you test positive, the military is supposed to check your medical records to make sure you don’t have a prescription. Unfortunately, I’ve defended a client who was being accused of using prescription drugs illegally even though his prescription was in his medical file. The military can and does test for prescription drugs.
3. The military doesn’t test for STEROIDS, SPICE, SALVIA, BATH SALTS, ETC.
False. Military labs are constantly changing and expanding what they test all the time. Military labs may not test for certain substances for a period of time, but eventually they will. There are no “safe" drugs.
4. You can test positive based on second hand smoke.
Mostly false. I’ve talked to several experts about this. The amount of second-hand smoke (cocaine or marijuana) it would take to make you test positive would essentially put you in a phone booth with marijuana/cocaine running for hours. Possible, but extremely unlikely. However, hanging out with people who are using drugs is a bad idea for military members. The best thing to do when you’re faced with other people using drugs is to politely walk away.
5. Your friends will not cooperate with law enforcement.
False. More often than not, your friends will give law enforcement whatever law enforcement wants. People facing possible criminal charges will often lie, cheat, or otherwise do whatever they can to save themselves. This is another reason why it is a bad idea to hang out with members who use drugs. When they get caught, they will almost certainly say that their friends were around during drug use.
6. Military jury members will convict someone who tested positive based on the drug test alone.
False. Legally, the military tells jury members that a positive drug test by itself can prove knowing and conscious use. However, in my experience, I’ve found military jury members will want to know whether the use was knowing and conscious. If there is a good reason you tested positive, military members will want to know that. A number of my clients were acquitted by military jury members because the Government could not prove knowing and conscious use.
7. Military members who test positive should plead guilty.
False. Whether you should plead guilty or go to trial depends on the case. Every case is different. Pleading guilty may be the right thing to do if the Government has strong evidence (such as a confession) and you are in fact guilty. In many other cases, it makes sense to take a case to trial. In the right cases, taking a case to trial may result in a lighter sentence. You should contact an experienced military defense lawyer for questions about your particular case.
The bottom line is that military members should avoid drugs or drug users at all costs. If you test positive, always talk with an experienced military lawyer before you talk to your chain-of-command.
NOTE FOR DRUG ADDICTED MEMBERS:
If you are addicted to illegal drugs, you need to get help. Not only medical help, but legal help. There are options for military members to get help with drug addictions without being charged or losing your career. Talk to a military defense lawyer for more information.