Court Martial for Drug Use
I have previously written about positive urinalysis, but I want to discuss more specifics about the decisions of command to prosecute random urinalysis in a court martial for drug use and how these cases can be won. More importantly, is your decision on how to fight allegations of drug use in the military.
It’s the middle of the week, and your first sergeant comes to you, and without any warning or notice, he takes you directly to the law enforcement investigator’s office. Sometimes these are CID/OSI/NCIS agents, and sometimes it’s the MP investigators. In either case, they are specifically trained to gather as much information from you without you invoking your rights to remain silent or request an attorney.
You will be confronted with the results of your urinalysis from a few weeks ago, and they’ll be looking for an explanation. In my experience, there’s no explanation at this level that will get the case dropped. Generally speaking, it is in your best interest to state clearly, “I want an attorney, I do not want to answer any questions.”
“But doesn’t that make you look more guilty?” To be honest, your command and the investigator are going to make you feel that way — but, believe me when I tell you, there is almost nothing you can do to talk yourself out of charges being brought. I have seen very reasonable and specific explanations that not only still lead to charges, but fuel for the prosecutors in their case against you.
When you are facing the jury, your silence and request for an attorney CANNOT be used against you, and that’s all that matters!
How Can I Beat Drug Use Charges?
There is no sure fire answer on how to beat a charge of drug use, but the acquittal rate is exceptionally high. The law permits juries to convict a person based solely on the results of a drug-testing laboratory, but in my experience, the jury wants some form of evidence to corroborate that drugs were used. The less the prosecutors know about the Accused’s whereabouts prior to the drug test, the more reasonable doubt the jury will have.
Some drugs, like cocaine, stay in your system for only a few days. This can be both beneficial and detrimental to an Accused. A good prosecutor will be able to track the few day testing window to find corroborating evidence about where you had been. If the prosecutor cannot find this evidence, their case becomes much weaker.
A drug that stays in your system longer, like marijuana, can make it difficult for the prosecutor to establish where it was used, but marijuana has less possible explanation for unknowingly ingesting the substance.
Your Best Drug Defense – Unknowing Ingestion
In the end, the best defense in most drug use cases is the defense of unknowing ingestion. This means that although the Accused likely had the substance in his system, he does not know how or why it got into his system. The law requires that in addition to the drug being used, that it must have been used knowingly. In a cocaine case with a low amount of the substance in the urine results, that means little more than a few grains of sand-sized cocaine could have caused the positive results.
A good defense counsel will make their case about the many ways cocaine, or other drugs can enter the system. Any good military defense counsel will be able to tell you this is your best strategy, but the best military defense counsel will be able to discuss the toxicological studies that establish the science behind this defense. The Government will have an experienced expert toxicologist to testify against you, and while they may provide you an expert as well, there is no telling how experienced they are, but less how much experience they actually have defending these cases. Make sure you are getting a true value in your attorney by ensuring he or she truly knows the science behind your case!
Punishment for Drug Use in the Military
Not every drug case can be won. Sometimes it’s a friend that snitches; sometimes it’s too much circumstantial evidence; and, sometimes, it’s a down right confession. In any case, the fear of what the punishment can be is debilitating.
The maximum punishment in drug use cases can be entirely unreasonable. Dishonorable discharge, 5 years in prison, felony conviction, etc. Your best defense will not only focus on how to beat the charges, but what can be done if you are convicted.
So many civilian attorneys don’t give you this side of the defense. They leave this incredibly important task to your free local counsel. In my opinion, your civilian defense counsel should be personally trying to speak to every character lead you send them. This means personal emails AND phone calls. I have found that a bulk email (sent by most free defense counsel) return about 5-10% of the requested character letters. But when your civilian counsel makes personal contact with the list, upwards of 50% will respond with character letters and affidavits. Make sure this is part of the scope of representation you are promised when you hire!
Most defense counsel also rely on boring statements from the Accused that tend to do more damage than good in the sentencing phase. I take the “unsworn” statement of the Accused much more seriously. This is the opportunity to let the jury really get to know the individual, and words read from a page are so very impersonal.
These letters are so important because it can save you from lengthy confinement and that dreaded punitive discharge. Recently, I had a client convicted of drug use with a lengthy prior record of misconduct including a DUI. In that case, the “going-rate” was 6+ months confinement and a Bad Conduct Discharge. By humanizing my client in his statement to the jury and presenting character letters, the worst of his punishment was 60 days confinement and NO discharge! Every case is different, but this demonstrated the importance of a Defense Team ready to handle a sentencing case!!!
Defending Your Court-Martial for Drug Use
Every case is unique and requires the time and energy to fully consult on all of the facts and information. When you call, we can discuss every angle of your case, at no charge. Call anytime, day or night. The results of other cases are important to understand lessons learned, and successful strategies, but every case is unique and past success may not be an indication of future success.