A service member who tests positive on a urinalysis should always hire an expierenced military lawyer.
DOD said that in Fiscal Year 2021, delta-9 THC, the most well-known intoxicating cannabinoid – what is found in marijuana – “was the most prevalent drug for active duty Service members, accounting for 73.4 percent of all unique drug positive active duty Service members” who underwent urinalysis. A positive delta-9 THC result is reported as a positive result for “THC9” by the military drug testing laboratories.
That’s followed by delta-8 THC, which occurs naturally in trace amounts of the cannabis plant but is synthetically manufactured from hemp and sold lawfully sold throughout the United States under the 2018 Farm Bill, a federal law that amended the Controlled Substance Act made legal the sale of hemp-derived products so long as the delta-9 THC was less than 0.3 percent on a dry weight basis. According to the DoD, delta-8 THC showed up in 42.7 percent of drug tests for service members. Many of the delta-8 THC positives also contain a trace amount of delta-9 THC. This is due to delta-9 THC contamination during the production process of delta-8-THC products. A positive delta-8 THC result is reported as a positive result for “THC8” by the military drug testing laboratories.
The DoD cut-off for reporting a positive result for THC8 is 15 ng/mL. That number is an administrative number created by the DoD. Tests come back for THC8 at 14 ng/mL still indicate delta-8 THC ingestigation, 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 of the substance was used or whether the person knowingly ingested the substance.
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 wrongful use was not proven. THC8 is ripe for unknowing or innocent ingestion defenses because it is available under federal law and scantly regulated by the states. As a result, contact with the drug no longer means you are hanging out with shady people or illegal drug users.
Is using delta-8 THC illegal for service members?
Yes. All services have prohibited the knowing use of any product that contain a hemp-derived substance by written, general regulations. Because delta-8 THC is derived from hemp, falls under these prohibitions. These regulations are lawful orders, violations of which are punishable by Article 92, UCMJ and constitute a “serious offense” for purposes of administrative separation. At this time, the military is treating a THC8 positive result nearly identically to how it treats a THC9 positive result.
What should a service member do if he or she tests positive for THC8?
If a service member tests positive for THC8, he or she should remain silent and immediately contact an attorney. I truly believe that hiring a civilian lawyer – an experienced civilian military defense lawyer – immediately can be the difference between being kicked out of the military and being able to continue in the service. Every civilian military defense lawyer at Korody Law, PA has years – if not decades – of experience handling positive urinalysis cases. Often times service members don’t want to invest in retaining a civilian military defense counsel for a positive urinalysis because they either think comparable services are available through JAG or believe being kicked out is a foregone conclusion so hiring a lawyer is a waste of money. Both justifications are simply not supported by our track record at Korody Law. More than 70% of our clients who have tested positive on a urinalysis continue to serve. And while this number is based on the particulars of each case, and every case involves different factors like record of service, evidence, drug at issue and test results, your lawyer’s knowledge and experience absolutely makes the difference. In fact, it could be the difference in continuing to serve and being separated for misconduct with a less than honorable discharge.
What if a service member can't afford an attorney for a positive urinalysis case?
I respect that everyone has financial obligations. The one thing service members have, that other individuals under investigation for criminal offenses may not have, is steady employment and a regular pay check. To me, it is often less about finances and more about whether hiring a civilian military defense lawyer is a priority for that individual. A client is paying for responsiveness, experience, confidentiality, and someone who is outside of the chain of command. Our attorneys can be reached night and day, and on weekends and holidays.
If a service member does not choose to hire a civilian military defense lawyer to represent him or her following a positive urinalysis, the next best option is to regularly go see the local JAG defense office – ADC (Air Force – Area Defense Counsel), DSO (Marine Corps, Navy, Coast Guard – Defense Service Office) , or TDS (Army – Trial Defense Service).
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 Korody Law for a free consultation at (904) 383-7261.