Article 112a, UCMJ, Wrongful Use of a Controlled Substance, has two related elements: (1) use of a controlled substance, that is (2) wrongful. The term “controlled substance” is defined in Article 112a, UCMJ, in three ways: (1) by what is listed in the text of the article, (2) through reference to a schedule as prescribed by the President, and (3) through reference to Schedules I through V of the Controlled Substances Act (CSA).
Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance are specifically listed in Article 112a. With regard to Schedules I through V of the CSA, drugs, substances, and certain chemicals used to make drugs are classified into five (5) distinct categories or schedules depending upon the drug’s acceptable medical use and the drug’s abuse or dependency potential. The abuse rate is a determinate factor in the scheduling of the drug; for example, Schedule I drugs have a high potential for abuse and the potential to create severe psychological and/or physical dependence. As the drug schedule changes– Schedule II, Schedule III, etc., so does the abuse potential– Schedule V drugs represents the least potential for abuse.
Though there were charging issues when Spice and controlled substance analogues hit the streets several years ago, establishing that a positive drug test indicates a prohibited controlled substance is generally not a matter that is litigated. The central defense to an Article 112a, UCMJ, Wrongful Use of a Controlled Substance, absent errors in the collection, custody, and testing processes for the positive drug test, focuses on the second element – that is the requirement that use be “wrongful.”
And, because most positive military drug test cases lack witnesses who will testify that they saw the member using drugs or under the influence of drugs, without a further understanding of military law, it may seem like most members who test positive on a military drug test should walk automatically. Unfortunately, that is not the case because of a legal concept known as a “permissive inference.”
It is well established in military law that use of a controlled substance is not wrongful if the use occurs “without knowledge of the contraband nature of the substance.” Knowledge is a very high legal standard, and the burden of proof always falls on the prosecution at a court-martial or command at an administrative separation board. And, because most positive military drug test cases lack witnesses who will testify that they saw the member using drugs or under the influence of drugs, without a further understanding of military law, it may seem like most members who test positive on a military drug test should walk automatically. Unfortunately, that is not the case because of a legal concept known as a “permissive inference.”
A “permissive inference” is an instruction to the fact-finder (decider, jury, board members) that they can infer something to have happened though they have no direct evidence of the thing happening. The most common example involves rain: “If you wake up the morning, and you look outside, though it is not raining, the ground – everything is wet – you may infer, that is conclude, that it rained at some point in the past.” The “permissive” aspect is the “may” – there is no legal requirement to make the inference.
In positive drug test cases, military law, in the Manual for Courts-Martial, provides drug use “may be inferred to be wrongful in the absence of evidence to the contrary.” The practical effect of this “permissive inference” is to shift the burden to the member to produce some evidence showing that the use was without knowledge, and thus not wrongful. Because of this “permissive inference,” service member who test positive on a military drug cannot just sit back and rely on the presumption of innocence.
There are lots of ways to produce some evidence showing that the drug use was without knowledge. Good military character can and should be raised, though alone is rarely sufficient to overcome the inference. Evidence of innocent or unknowing ingestion, if presented correctly, can normally overcome the inference. Such evidence is akin to an alibi defense in some cases (though don’t call it that) – it’s basically providing an alternative explanation for the positive drug test. A point that needs to be made clear – a member doesn’t have to prove exactly how the drug was ingested; the member needs only to have enough evidence to call into question whether there is a reasonable possibility that the positive drug test was not the result of wrongful, knowing use of a controlled substance.
EXPERIENCED MILITARY DEFENSE LAWYER FOR POSITIVE DRUG TEST CHARGES
What do I do when I am notified that I tested positive on a military drug test urinalysis?
Answer: Make NO statements to anyone. Get a lawyer. Discuss options to get a hair test or retest done with your lawyer.
Do the military drug testing labs make mistakes?
Answer: They have in the past, which means they could do so in the future. More common, however, are errors in the collection process at the unit, such as failure to maintain control and custody over the samples prior to delivery to the lab. These errors can be identified through a review of the drug testing documents for the batch.
What are the consequences for testing positive on a military drug test?
Answer: Members of the military can be court-martialed for wrongful use of a controlled substance. More commonly, when a member tests positive on a military drug test, charges will be brought under Article 15, UCMJ (Non-judicial punishment) and the member will be processed for involuntary administrative separation from the service with the least favorable characterization of service as Other Than Honorable (OTH). An OTH discharge carries a significant negative connotation in the civilian world and results in the loss of all veterans’ benefits that were earned during the current period of service. If a member is separated for drug use, the member is barred from enlisting in any other branch of the military.
How can Korody Law help?
Answer: We have handled more than 100 positive military drug test cases. Mr. Korody has earned the reputation as one of the country’s best military defense lawyers for positive drug test charges. He is familiar with all collection and testing procedures across all branches of the military. He has successfully run the spectrum of defenses in positive drug test cases including innocent ingestion, unknowing ingestion, flawed collection procedures, flawed testing procedures, illegal collection of samples, and valid medical use.
When [CLIENT] told me he hired civilian counsel, I thought he was wasting his money. This case was a straight forward positive urinalysis case. You brought the best defense I have ever seen. Hiring you was the best decision that kid made. I don’t know how much he paid you, but you are worth every penny of it.
– Senior Military Prosecutor
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Military Defense Lawyer Patrick Korody spent 10 years on active duty as a Navy JAG and was certified as a Military Justice Specialist II. He has successfully defended military positive drug test cases across all branches of the military, at bases around the world.