Best Things To Do Following a Positive Military Urinalysis Drug Test
As background, there are several types of military urinalysis.
A “check-in” urinalysis when the member checks-into the unit or returns from leave. This is considered a valid inspection because every member does it. A “unit sweep” urinalysis occurs when the unit commander directs that every member of the unit (except for those administering the urinalysis) provide a sample. This is considered a valid inspection.
A “consent” urinalysis occurs when a specific member or small group of members are asked to provide a voluntary sample. This normally occurs after there is an incident. The consent must be freely and voluntarily by the rules, but we often see pressure and coercion exerted to get the member to consent. Normally the consent is given in writing.
A “probable cause” urinalysis is also called a “commander directed” urinalysis. It is an order to a specific member or small group of members by the unit commander to give a sample. The members must give the sample or face consequences for violating a lawful order. Probable cause is defined as, based on the totality of the circumstances, reasonable grounds exist to believe that the member or members being ordered to provide a sample have used drugs that will be identified from the urinalysis. Commanders should consider the drugs that the military forensic drug screening laboratories test for and the windows of detection for the urinalysis testing (normally 3 to 5 days).
Finally, the most common type of military urinalysis is the random urinalysis or “random inspection” urinalysis where the Internet Forensic Toxicology Drug Testing Laboratory (iFTDTL) Portal randomly selects members of the unit for testing. By regulation, at least 10% of the unit needs to be tested monthly. Depending on the size of the unit and other factors, this could be done with a single urinalysis or several urinalysis each month.
Every member should be tested at least one time a year. There is no limit on the number of times a member can be tested.
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In this video Attorneys Patrick Korody, former U.S. Navy JAG, and Matthew Thomas, former Marine Corps JAG, discuss what service members can expect if they test positive on a military urinalysis (drug test).
What happens if I test postive on a Military Urinalysis Drug Test?
If you test positive on a military urinalysis, there are several ways to challenge the result. This post is designed to give you an idea of the evidence and defenses that exist to fight a positive a urinalysis.
1. Flawed Collection Process. In my experience, many urinalysis tests are not conducted in accordance with the regulations. This could be anything from checking identification to packaging of the samples for shipment. I’ve seen samples lost for months. The collection process can be challenged based on the urinalysis paperwork and eyewitness testimony.
2. Flawed Testing Process. The military drug testing laboratories test millions of samples each year. The reality is that the laboratories will make errors. Humans remain involved in the testing. And there is evidence that the instruments and testing procedures used in the labs have made errors in the past. Errors in the handling and testing of the sample can be found upon review of the laboratory documentation.
3. Innocent and Unknowing Ingestion. This is by far the most common defense. Innocent ingestion and unknowing ingestion are often confused with one another. As a reminder, to be separated from the military for drug use, there must be evidence of “wrongful drug use.” For drug use to be wrongful, it must be knowing and conscious use. In other words, if a member doesn’t know he or she ingested the drug, then it is not wrongful. It is also not wrongful for a military member to take a valid prescription (what a “valid” prescription is can be difficult to ascertain, especially where the prescription is more than 6 months old or not in the member’s military record). Innocent ingestion is akin to an alibi defense where the member provides a strong explanation (where, when, how) for the positive urinalysis. Unknowing ingestion is an argument that based on good military character and other altruistic characteristics of the member he or she would never have used the substance that resulted in the positive drug test.
The two Navy Drug Screening Labs test approximately 2.5 million specimens annually from Navy and Marine Corps active duty, recruit, and reserve members, all Department of Defense (DOD) military applicants processed through the Military Entrance Processing Stations, and other military members (i.e., Army, Air Force, Coast Guard, ROTC). This number does not account for the Army and Air Force Laboratories.
What are the Top Three Things a member can do if he or she is notified of a positive military urinalysis drug test?
- The first thing a military member should do when he or she tests positive on a military urinalysis is to remain silent. Do not discuss the positive drug test results with anyone – not your chain of command, not law enforcement, not your friends. You can expect some type of investigation, whether that is an order to go to NCIS or CID or OSI, or a commander’s inquiry/investigation.
- Be sure to take note of the drug and quantity of drug. A military urinalysis is actually two types of testing. First, the urine is “screened” using a immunoassay test. This is a presumptive yes or no type of test. Think of a dipstick that turns a color if the drug is present (it’s not a dipstick in reality). If the urine tests positive on the immunoassay screening test, it is sent for a confirmatory test using LC/MS technology. This is highly sensitive testing that quantify the amount of the drug present in the urine. In some cases, urine that tested positive on the immunoassay screening does not test positive in the LC/MS test or tests below the DoD cut-off threshold for the drug. Those results are reported out negative, and the member would have no idea that the sample ever went through the confirmatory testing process. But the drug and quantity of the drug are important. At certain levels, no toxicologist can say that person would have felt the psychological or physiological effects of the drug. It’s also important to know the drug in order to explore possible innocent ingestion. It may also be wise, depending on the drug, to seek an independent drug test.
- Hire a civilian attorney. Many drug cases are won and lost in the first week or two after the positive result comes back. This may be because the member admits to the drug use; gives a false explanation (later debunked) for the positive result; loses the opportunity for an independent drug test; or unintelligently waives certain rights and due process protections.
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Korody Law has more than 50 years total military JAG experience. Attorney Patrick Korody and his firm’s counsel have represented members in every branch of the military facing a positive military urinalysis drug test. We are uniquely familiar with the command perspective and can anticipate command action having been the principal command legal advisor at every level from O4 commanders through 2 star flag officers.