Urinalyses must be reported as positive for cocaine if Benzoylecgonine (BZE), a cocaine metabolite, is detected in a urine specimen in the quantity of 100 ng/ml or more. BZE will be present in a Soldier’s urine if either 1) cocaine was ingested (whether knowingly or innocently) or 2) cocaine was added to the urine sample after collection. In discovery, your military defense attorney should request testing of the following additional and arguably more reliable cocaine metabolites: Ecgonine Methyl Ester (EME); m-Hydroxybenzoylecgonine (m-OHBZE); p- Hydroxybenzoylecgonine (p-OHBZE); and n-Desmethyl Benzoylecgonine (norBZE). These metabolites are only produced when the human body metabolizes cocaine; they cannot be produced by introducing cocaine into or tampering with a urine specimen.
In United States v. Mosley, 42 M.J. 300 (C.M.R. 1995) the court held that courts are not required to order additional metabolite testing; rather, the decision to do so rests within the discretion of the Military Judge and/or Convening Authority. Remember, additional metabolite testing can work against you as much as for you.
During discovery, if there exists evidence request negative test results above “0” and below “100ng/ml” cut-off to determine that your client has used cocaine or other unlawful drugs in the past. Discovering this information is vital, especially if you intend to testify denying prior drug use. DOD forensic laboratories have information management systems that maintain urinalysis results, whether reported as negative or positive, for many years.
In United States v. Johnston, 41 M.J. 13 (C.M.A. 1994), the court held that the admissibility of negative test results at trial rests within the discretion of the military judge. If this information is admitted at trial or presented to a board to impeach your credibility on the issue of prior drug use, it could be devastating to the outcome of the proceeding from a defense standpoint.
There is a wealth of professional literature that can help your military defense attorney formulate your defense. The Journal For Analytical Toxicology has several articles on innocent ingestion, smoke exposure studies, consumption of Latin American teas (legally sold in the United States but made wholly or partially with coca leaves), and other studies that may explain how or why you tested positive for cocaine. Many journal articles have been added to the DCAP Portal under the “Recent Articles” section.
Remember the Confrontation Clause of the Sixth Amendment. In Melendez-Diaz v. Massachusetts, 557 U.S. (2009), the Court ruled that lab certificates prepared by analysts are 1) hearsay and 2) inadmissible at trial over defense objection. Now, to satisfy the Confrontation Clause of the Sixth Amendment, the prosecution must call the analyst to testify at trial. This can be of great help to your military defense attorney in negotiations, especially if there is an unknowing trial counsel who wants to rush into court.
Challenging Urine Collection: Sample Discovery Language
SAMPLE DISCOVERY REQUEST NO. 1
All existing quarterly reports of XXXXXX for year XXXX. These requested reports may be procured through the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort Meade, MD. The FTDTL will release these to you only if it receives a request from the Office of the Staff Judge Advocate.
SAMPLE DISCOVERY REQUEST NO. 2
All information contained within the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort Meade, Lab Information Management System regarding “all” prior urinalysis test results for XXXXXX (your client name and rank), to include, but not limited to negative results where the reported ng/ml result for BZE was less than 100.
SAMPLE DISCOVERY REQUEST NO. 3
Defense requests that the urine sample of XXXXXX (your client and rank), which was collected on or about 15 July 2008, be tested for the presence of ecgonine methyl ester (EME). EME is one of two metabolites tested for with urinalysis to determine if a Soldier unlawfully used cocaine. Urinalysis for the second metabolite associated with cocaine use, benzoylecgonine (BZE), was performed on XXXXXX (your client and rank), urine sample by the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTC) of Fort Meade, MD, on or about _____________ (collection date). The result was positive for the presence of BZE. Testing for the presence of EME, however, was not conducted. The Defense respectfully requests that the Government conduct additional urinalysis of XXXXXX (your client name and rank), sample for the presence of EME. This request is made in accordance with United States v. Mack, 33 M.J. 251 (C.M.A. 1991).
SAMPLE DISCOVERY REQUEST NO. 4
Defense requests that the urine sample of XXXXXX (your client and rank), which was collected on or about _________________ (collection date), be also tested for the presence of additional metabolites, which are indicative of cocaine ingestion. Specifically, the Defense requests additional urinalysis testing for the presence of m-hydroxybenzoylecgonine (m-OHBZE); p- hydroxybenzoylecgonine (m-OHBZE); and N-desmethyl benzoyl ecgonine (norBZE). The absence of these metabolites from his urine sample will support his defense against the pending charge of wrongful cocaine use. Defense respectfully requests that the Government engage the Armed Forces Institute of Pathology in Rockville, MD to conduct the above-requested testing.