Positive Military Drug Test for THC – What does it mean?

Do you love that video? “Beyond a doubt”!  Not sure who came up with that, but over the years there are known errors at the military’s drug labs – across all services.  False positives, contamination, misplaced or lost samples, and unknown DNA contributors in the urine.  And it shouldn’t be unexpected.  Did you see how many samples were shown in that video and how many people were working around those samples?  Did you see how many bottles were out at one time?  Do you doubt that those technicians make errors with those samples?  The only thing we know beyond a doubt is that there have been errors by those drug labs.

But back to the topic at hand – a positive result for THC.  First, the drug labs don’t actually test for THC.  They test for a metabolite of THC.  A drug metabolite is a byproduct of the body breaking down, or “metabolizing,” a drug into a different substance.  The presence of the metabolite is an indicator that the parent drug (THC) was in the system at one point.  Drug labs test for the metabolite because drugs are often metabolized very quickly.  If laboratories only tested for the parent drug, there would be an extremely short detection window.  The detection window for the metabolite of THC can be anywhere from a day or two to up to weeks, depending on various factors including how often the person ingested marijuana, i.e. chronic use.

The DoD cut-off level to report a positive result for THC is 15 ng/mL.  That number is an administrative number created by the DoD.  Tests that come back for 14 ng/mL THC still indicate marijauna use, but the DoD has chosen not to report them out as positive samples.  The quantitative result (i.e. the concentration) generally has no correlation as to how much marijuana was used or whether the person knowingly ingested the drug.

Why is knowing important?  Because drug use in the military is only illegal if it is knowing.  Unknowing, or innocent ingestion, is an absolute defense at both a court-martial and an administrative separation board.  But, because it is a defense, it has to be raised by the defense through some evidence.  Moreover, most military members who serve on boards and courts-martial panels want more than the issue raised – they want a service member with an impeccable record, support from the chain of command, and a strong explanation for the unknowing or innocent ingestion if they are going to find the drug use was not proven.  Marijuana is ripe for unknowing or innocent ingestion defenses because it is available in 35 states medically and 11 states recreationally (as of the time of writing this post).  As a result, contact with the drug no longer means you hanging out with shady people or illegal drug users.

I recently saw a marijuana result over 900 ng/mL.  In fact, it was so high that the lab had to dilute the sample because the lab machines were having difficulty quantifying the amount of the metabolite in the urine  – meaning the original sample was probably higher than 900 ng/mL!  Most results for marijuana are in the double digits or low one-hundreds, and those cases are ripe for unknowing or innocent defenses.  There are also other defenses, especially if there are errors  noted in the collection and testing documentation.  I recently had a case where the samples reportedly were kept in an unlocked office drawer for 35 days before they were sent to the laboratory.

If you test positive for THC, you shouldn’t admit anything to your chain of command.  You may want to consider getting a confidential hair drug test at your own expense.  You may want to get your urine tested for DNA.  These are all things you need to discuss with your attorney at the earliest possible opportunity.

UPDATE: In July 2021, the Department of Defense drug labs began testing for delta-8 tetrahydrocannabinol (THC-8) and delta-9 tetrahydrocannabinol (THC-9).  These are separate tests.  Previously, THC-9 was the only cannabinoid tested and was referred to as simply “THC” on a positive urinalysis report. 

If accurate, a positive urinalysis result that includes THC-9 (and on some occasions THC-8) is most likely evidence of marijuana/marijuana derived THC-9 product use.  

If accurate, a positive result for only THC-8 most likely indicates the ingestion of commercially available THC-8 products that are sold legally throughout the United States under the 2018 Farm Bill, a federal law that amended the Controlled Substance Act and made legal under Federal law the sale of hemp-derived products so long as the Delta-9 THC was less than 0.3 percent on a dry weight basis.   

The use of hemp products including THC-8 products by military members is prohibited by regulation.  The defenses available for a THC-8 postiive urinalysis are the same as those for a THC-9 positive urinalysis – innocent or unknowing ingestigation; collection/testing errors; and good military character.

Wondering if you tested positive for THC-8 or THC-9?  Ask your command for a copy of the results and it will indicate “THC8” or “THC9”.  The number next to it will indicate the level of the positive result, such as “THC8 86>lol”.

Attorney Patrick Korody is a Navy JAG veteran who specializes in military drug defense cases.  He has represented hundreds of enlisted and officers who tested positive on a military urinalysis.  His office is in Jacksonville, FL, and he travels worldwide to defend those defending our freedom.  Call him for a free consultation at (904)383-7261.