Challenging Urine Sample Collection (Part I)
If the collection is unlawful, your military defense attorney can file motions under the 4th Amendment and/or Section III of Military Rules of Evidence (MRE) to suppress in limine to exclude the sample at courts-martial setting, or moving to preclude its use before an ADMIN-SEP Board.
AR 600-85, Appendix E, and SOP of your Unit Prevention Leader (UPL) deal with the collection procedure. Your military defense lawyer should carefully review the litigation packet for the unit’s compliance with both the AR and SOP. In United States v. Pollard, 27 M.J. 376 (C.M.A. 1989) the court held that minor deviations in the collection procedure do not generally affect admissibility of urine samples at trial. In United States v. Strozier, 31 M.J. 283 (C.M.A. 1990) the court held that gross deviations in collection procedure may serve as the basis for successful motions in limine.
Forensic laboratories must perform three tests before reporting a cocaine-positive urinalysis:
- an initial immunoassay screening for the presence of BZE (one of several cocaine metabolites);
- a second immunoassay test confirming BZE; and
- GCMS – a second and more reliable testing method to confirm both the presence and quantity (100 ng/ml or more) of BZE in the urine specimen.
Yourmilitary defense lawyer should review the litigation packet to ensure all three tests were performed. If there are any discrepancies or omissions in this three-step testing requirement, defense may discover a gross deviation in procedure sufficient to exclude the positive test results. Also, ask your attorney to request Greystone Reports – quarterly independent quality control reports – from the forensic laboratory that tested your urine specimen.
Your military defense attorney should retain a forensic toxicologist at all costs, especially if you are facing either court-martial or separation. Urinalysis is based on science and most attorneys are neither scientists nor scientifically or mathematically inclined. Experts can spot errors or omissions in testing procedures, research and acquire pertinent scientific literature, and assist with cross-examining government’s experts and preparing affirmative defenses.
Contact an attorney from The Bilecki Law Group if you feel your collection is unlawful and you would like an attorney to file a motion on your behalf.