Innocent Ingestion: Positive Urinalysis Defense

A Servicemember is formally notified of a positive urinalysis from his/her chain of command. When this occurs, it is common for Servicemembers to be very confused about how they tested positive. Testing positive for an illegal substance does not automatically mean a Servicemember is guilty of anything. This article discusses one defense to a positive drug test called “innocent ingestion.”

In order for a Servicemember to be found guilty of illegal drug use, it must be proven that he/she knowingly consumed an illegal substance. What this means is that if a Servicemember unknowingly consumed an illegal substance, they are not guilty. However, once a Servicemember’s drug test comes back positive, there is a legal presumption that he/she knowingly consumed the drug in question. This presumption can be proven wrong with evidence to the contrary.

The hard part for a Servicemember in this situation is convincing his/her chain of command (or a judge/jury) that he/she unknowingly consumed an illegal substance. His/her word is usually not enough. It typically takes unbiased witnesses, scientific evidence, and a solid theory as to how the Servicemember accidentally consumed the drug. For whatever reason, Commanders, jury members, and judges have a hard time believing that anyone could unknowingly consume any illegal substance.

Innocent ingestion is by far the most common defense for Servicemembers accused of illegal drug use. Usually Commands attempt to handle positive drug tests with nonjudicial punishment. Servicemembers have a choice on whether to fight the allegations at the nonjudicial punishment proceedings or to demand trial by Court-Martial (see Attorney Barry’s article on Turning Down Nonjudicial Punishment).

Before a Servicemember in this situation makes any decision (or statement), they should consult with a military attorney. With the help of an experienced attorney, a Servicemember stands the best chance for success.

This article was written by Attorney Matthew Barry

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