I have a passion for defending military members who have tested positive on a military urinalysis. I am motivated, in part, by the military’s unwillingness to concede that mistakes have been made and innocent service members have been separated based on positive drug tests when they never used the drugs. Because the average military member who has never tested positive on a military drug test refuses to consider the possibility that a laboratory that tests 1 million + samples a year could make a mistake, a savvy defense attorney has to understand what defenses truly work.
The best defense is often innocent ingestion of the drug. Innocent ingestion is akin to an alibi defense – there is a known event wherein the drug was innocently ingested by the military member causing the positive drug test. At a court-martial, the Rules for Courts-Martial require disclosure of the innocent ingestion defense before trial; that is, the accused must disclose to the prosecution that he or she intends to raise the defense and identify the witnesses who will be called in to support the defense. There is no similar requirement at an administrative separation board for drug abuse or illegal drug use, although some of the services require a general exchange of witnesses prior to teh hearing.
The crux of an innocent ingestion defense is that the use was not illegal or wrongful. But there are a number of pitfalls with running an innocent ingestion defense:
1) If the military member was aware of the innocent ingestion, why not raise it to the command at the time of the urinalysis?
2) Are the witnesses who will have to testify to support the defense willing to admit they possessed, used, or distributed an illegal drug?
3) The accused has to admit that the drug test is accurate; thus if the innocent ingestion defense does not work, there is no alternative defense in play.
Innocent ingestion is not the same as unknowing ingestion and defense attorneys and military members need to be clear on which defense they are running. Innocent ingestion, again, is an alibi defense. Unknowing ingestion, on the other hand, is a defense attacking the element of wrongful or illegal use – that is that if the test is accurate, the use must have been unknowing. The primary difference in practice between innocent and unknowing drug use is that in an unknowing use defense the accused is not saying that he or she did ingest the drug at a certain place and time under certain circumstances but that it may be a possibility that such unknowing ingestion occurred.
If a military member tests positive on a military drug test, he or she should make no statements to anyone and speak to an experienced military defense attorney about possible defenses. Before claiming innocent ingestion, the defense must be bulletproofed.
Attorney Patrick Korody spent 10 years on active duty in the Navy JAG and continues to serve as a reserve military defense counsel. He has litigated more than 100 drug use cases for members of the Navy, Marine Corps, Coast Guard, National Guard, Air Force, and Army, achieving outstanding results for his clients. Mr. Korody offers a free military drug use case evaluation. He can be reached at (904) 383-7261.