Military DrugCrimes Lawyer
At Bilecki Law Group, we know that there is always more to the story than the prosecution lets on. We fly in hard-hitting attorneys anywhere in the world to fight for those who stand on the front lines of freedom.
Article 112a drug crimes are complicated charges to defend. Sometimes the drug is there, it belongs to someone, and a service member is caught somewhere in the proximity of the event. Other cases start with a positive urinalysis, a text message, or someone trying to save their own skin by naming names. Yet, there is always more to the story than the prosecution would like to let on. There may be civilian influencers involved in the dealings as well. The military and civilian systems can treat the same conduct very differently, and those in uniform face consequences that reach their rank, career, and freedom.
It is a damn shame when some of our finest warriors in the special operations community get caught up in Article 112a charges. Some are struggling with the optempo and trauma of the operations they conduct, not out there slinging crack to kids. We ask a hell of a lot of them, and better men than us have turned to illegal substances to manage. Then, you’ve just got PFC Smuckatelli who smokes a joint with his boys back home on leave and pops on the piss test upon his return. Neither example is that of a bad person, but a service member facing a drug charge can feel like military prosecutors think they just landed Pablo Escobar.
Accused of a Military Drug Crime? Start Here
This is extremely important, and we pray that you are reading this early during the investigation process. Don’t assume they have you, and do not admit guilt without talking to an experienced military court-martial defense attorney. That’s because there are many avenues to tackle these charges.
If CID, NCIS, OSI, or military police want to question you about suspected misconduct, state that you want a lawyer and are exercising your right to remain silent. Get legal advice before deciding whether to consent to a search of your phone, room, vehicle, or other property. Do not delete messages, reset a device, or ask someone to change a story. Preserve the prescription records, receipts, messages, and names of witnesses that may explain what happened. Comply with lawful orders; declining a voluntary interview or consent is different from obstructing an authorized search.
Do not plead guilty to military drug charges without talking to an experienced military defense attorney.
What Article 112a Covers
Article 112a covers the wrongful use, possession, manufacture, distribution, introduction, importation, and exportation of controlled substances. Introduction means bringing a controlled substance onto an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces. Importation and exportation concern bringing it into or taking it out of the customs territory of the United States. The prosecution can also allege possession, manufacture, or introduction with intent to distribute.
- Use
- Possession
- Manufacture
- Distribution
- Introductiononto an installation, vessel, vehicle or aircraft
- Importationinto U.S. customs territory
- Exportationout of U.S. customs territory
Possession, manufacture or introduction can also be charged with intent to distribute
State legalization does not make marijuana use lawful under the UCMJ. A drug available from a civilian dispensary can still create a military criminal case. Prescription drugs require a different inquiry: was your possession or use actually authorized? Having a prescription does not authorize sharing the medication or taking someone else’s pills.
How We Defend Military Drug Cases
Examine How Investigators Obtained the Drugs, Statements, and Phone Data
We examine the authority for the search, what investigators were permitted to search, and what they actually did. A consent form authorizing a search of one place does not settle whether investigators could search somewhere else. A phone search raises its own questions about the authorization, the dates and information it covered, and how investigators connected a message to you. We also review the interview recording and rights advisement rather than accepting an agent’s summary of what you supposedly admitted. An unlawful search or improperly obtained statement can support a motion to exclude evidence. The remedy depends on the violation and the applicable rules; a mistake does not automatically dismiss every charge.
CASE FILE · OKINAWA, JAPAN
In one case in Okinawa, Japan, Tim Bilecki got a CID agent to admit during cross-examination that he had altered a Soldier’s consent to search form after the Soldier signed it, expanding the search without the Soldier’s knowledge. The defense also challenged the order prohibiting Spice. The military judge suppressed the confession and ruled the Spice order unlawful. The government then dismissed the Spice charges and withdrew the remaining charges.
Separate Proximity from Knowing Possession
The drug may be in a shared barracks room, a vehicle you borrowed, or a package carrying your name. We examine who had access, who controlled it, and what you knew. Possession can be joint, so “it belonged to my buddy” does not answer the whole charge. But being near drugs is not the same as knowingly possessing them. Messages, witness accounts, access to the room or vehicle, and the circumstances of the discovery can matter more than whose name appears on a lease or address label.
Being near drugs
- A shared barracks room
- A vehicle you borrowed
- A package carrying your name
Knowingly possessing them
- Who had access
- Who controlled it
- What you knew
Test the Drug Identification and the Urinalysis Evidence
A positive urinalysis is serious evidence. It still requires examination of the collection records, specimen identifiers, chain of custody, laboratory results, and the basis for ordering the test. With a seized powder, pill, or vape product, we examine what the laboratory actually identified and how that item was tied to you. The label on a package or an investigator’s description is not a substitute for reliable proof of the substance. When the scientific issues require a toxicologist or another qualified expert, we identify the needed assistance and pursue it through private funding or an available request for government funding.
Examine Prescription Authority and What You Actually Knew
Not all drug use is wrongful. The lawful use of prescription drugs is an obvious example. The ingestion of a substance a person believes is MCT powder, but is actually cocaine, for example, may not be wrongful. The facts surrounding the prescription or the ingestion determine whether that defense fits your case.
In the case of a prescription, we examine the prescribing records, how the medication was obtained, and whether the alleged possession or use was within the authorization. If the trial evidence raises that issue, the prosecution still has to prove wrongfulness beyond a reasonable doubt. You do not have to prove your innocence. A properly obtained prescription can matter greatly, but a prescription for one person does not authorize another person to use the medication.
In the case of ingesting cocaine when you believed it was MCT powder, a person who uses cocaine but actually believes it to be a legal substance may have an innocent ingestion defense. We look for the container, purchase history, messages, witnesses, and other facts that support that account. While it is not necessary that you were aware of the exact identity of the contraband substance, knowing it was a prohibited drug can satisfy the knowledge requirement. If you believed you were taking cocaine when it was actually heroin, that is a different situation from believing you were taking a lawful supplement.
| You believed it was | It was actually | Where that leaves the defense |
|---|---|---|
| MCT powder (a lawful supplement) | Cocaine | May have an innocent ingestion defense |
| Cocaine | Heroin | Knowing it was a prohibited drug can satisfy the knowledge requirement |
| You deliberately avoided learning | An illegal substance | The prosecution may try to prove deliberate ignorance |
It is also important to understand that you can’t bury your head in the sand and deliberately avoid learning what you are taking. The prosecution may try to prove deliberate ignorance when someone recognizes a high probability that a substance is illegal and consciously avoids confirming it. That is different from mere carelessness. We examine whether the facts support that theory and challenge an unsupported instruction.
Challenge the Jump from Personal Use to Distribution
An allegation can grow from possession into distribution because of packaging, quantity, cash, or a few messages pulled out of a longer conversation. We examine the complete communications, the alleged transfers, the source of the money, and what cooperating witnesses expect to receive for their help. Giving a drug away can count as distribution even without a sale. But a prosecutor still has to prove the conduct charged. Quantity or packaging may support an inference of intent to distribute; neither relieves the government of its burden.
Recent Drug Case Results
Many drug cases start with a search or a urinalysis. Evidence from an unlawful search can be excluded, and consent to a search must be voluntary; simply going along with an announced search is not consent.
- Altered Consent to Barracks Search for Spice Results in Dismissal of Charges
- Bilecki Challenges Classwide Drug Testing at Eglin; Navy Sailor Retained Without Charges
- Bilecki Develops Innocent-Ingestion Defense with Toxicologist; Navy Drug Investigation Closes
Past results do not guarantee a similar outcome. See the Article 112a guide for the elements and maximum punishments.
Do Not Assume the Prosecution Has a Foolproof Case
CASE FILE · CAMP HUMPHREYS, KOREA
We flew out to Korea to defend a service member at Camp Humphreys who was accused of wrongful use of THC. At his administrative separation board, we challenged the interpretation of the urinalysis, including the significance of his legal medications. The board found no basis for misconduct, and the Soldier was allowed to continue to serve.
CASE FILE · HAWAII
In another case, we defended a Marine in Hawaii who popped positive for cocaine and was also accused of sexual assault and breaking restriction. In his case, the strategy was to negotiate a Separation in Lieu of Trial (SILT) so that he could leave the service without a criminal trial and conviction in that case. The strategy has to fit the charges, the proof, and what the client needs to protect.
So yes, even if the MPs kicked in the door to your barracks room and found cocaine on the desk, there is a strategy that can be pursued. We need to know whether they had lawful authority to enter, who controlled the cocaine, what you said, and what the prosecution can prove. You just can’t play around with these charges. The military takes drug allegations seriously, and even a seemingly small case can threaten your career.
Make the prosecution prove its case.
The Military’s “War on Drugs”
The War on Drugs has made its presence known well beyond the civilian community and into the bases, barracks, and courts of the U.S. military. A service member suspected of purchasing, using, or selling illegal drugs can face an investigation before anyone has heard the full story. Your prior service and the context of events deserve attention. They may help explain what happened or affect how the case is resolved, even when they do not provide a legal defense.
Joint operations involving civilian drug investigators and military Drug Suppression Teams can lead to manufacturing, importation, exportation, or distribution allegations. These sting operations involve casting a large net. The question in your case is whether investigators can prove your participation or have swept you into allegations about someone else. A civilian’s deal, an informant’s incentive, and the complete recordings can change how the government’s account should be understood.
If this sounds like the military is taking drug crimes seriously, then you’d be right. There comes a point when service members charged with military drug crimes need to stand up and fight to tell their side of the story. That time for you could be right now, which is why it’s important to have a defense team on your side that understands your rights, your story, and your service to America.
Drug charges, including offenses of drug possession and distribution, can have damaging and lifelong consequences. A conviction for wrongful possession of even a small amount of marijuana or prescription drugs can dramatically impact careers and limit opportunities. More serious convictions can result in years of confinement. A drug allegation can also lead to nonjudicial punishment or administrative separation, where the procedures and available responses differ from a court-martial.
What Punishment Can Article 112a Carry?
If you are found guilty of wrongful use, the maximum depends on the substance. A maximum punishment is a legal ceiling, not a prediction of your sentence. Under the Manual for Courts-Martial, the ordinary confinement maximums for wrongful use include:
- Five years: amphetamine, cocaine, heroin, LSD, methamphetamine, opium, PCP, secobarbital, and other Schedule I, II, or III controlled substances, subject to the separate marijuana-use rule.
- Two years: marijuana use, phenobarbital, and Schedule IV or V controlled substances.
Both groups can also carry forfeiture of all pay and allowances and, for enlisted members, a dishonorable discharge and reduction to E-1. Commissioned officers can face dismissal. Distribution and related trafficking offenses carry different, higher maximums, which can reach 15 years for certain substances before any applicable enhancement. The offense date, precise charge, forum, other convictions, and applicable sentencing rules matter. We explain the exposure in your case after reviewing those details.
The additional five years mentioned in Article 112a punishment discussions applies to specified circumstances that must be alleged and proved. Those circumstances include committing the offense while on sentinel or lookout duty; aboard a military vessel or aircraft; in or at a military missile launch facility; while receiving hostile fire or imminent danger pay under 37 U.S.C. § 310; in time of war; or in a military confinement facility.
- On sentinel or lookout duty
- Aboard a military vessel or aircraft
- In or at a military missile launch facility
- Receiving hostile fire or imminent danger pay
- In time of war
- In a military confinement facility
Now, what could an aggravating circumstance be that would add five years? It is not anything the prosecution wants to argue. If you were caught doing lines of blow in the barracks, that fact alone does not trigger the five-year increase. If the charged offense occurred while you were on duty as a sentinel, the government may seek that increase by alleging and proving the qualifying circumstance. Other aggravating facts can affect a sentence within the applicable limits without automatically changing the maximum.
Military History and a Complicated History with Drugs
Peter Lemon’s story is part of that complicated history. During the Vietnam War, he served with the 1st Cavalry Division. On 1 April 1970, he was an Army Specialist Four at Fire Support Base Illingworth in Tay Ninh Province, near the Cambodian border. His actions there would earn him the nation’s highest military honor.
Before dawn, the base came under a heavy enemy attack. The Americans had a fight on their hands. There was another part to Lemon’s account: according to a contemporary Associated Press report reproduced in Consumers Union’s Licit and Illicit Drugs, he later said he had smoked marijuana the night before the battle. The report quoted him saying, “It was the only time I ever went into combat stoned.” Contemporary account reproduced by Consumers Union.
Lemon began gifting violence to the enemy like it was Vietcong Christmas. He fought with his machine gun and rifle until both weapons malfunctioned, then used grenades and fought hand to hand. Wounded by a grenade, he carried a more seriously wounded comrade to an aid station and returned to the fight. He was wounded again, and then a third time. He secured another working machine gun, stood exposed on an embankment, and kept firing until he collapsed from his wounds and exhaustion.
When Lemon regained consciousness at the aid station, he refused evacuation until more seriously wounded comrades had been evacuated. His gallantry earned the Medal of Honor. His official citation records that courage; the separate reporting recounts his marijuana use. All this to say that the military’s relationship with drugs is complicated. A service member’s conduct and service deserve to be understood in full. That does not make drug use lawful or erase a charge, but an accusation does not tell you everything about the person facing it.
You Still Deserve a Staunch Defense
You can be a good service member who messed up, and you deserve a military court-martial defense that takes your future seriously. If they are accusing you of any drug crime, whether that is wrongful possession, use, distribution, or even manufacturing, you still deserve a staunch military court-martial defense. You don’t have to accept the prosecution’s account without a fight. Reach out to us and let us use our experience to help. You can fight back, and you can win.
Frequently Asked Questions About Military Drug Crimes
What if I Didn’t Know the Substance Was an Illegal Drug?
That can be central to the defense. Wrongful use requires knowledge of the substance’s presence and its contraband nature, although the prosecution can rely on permissible inferences and other circumstantial proof. The government bears the burden of proving guilt beyond a reasonable doubt. We investigate what you actually knew, what you were told, and what the surrounding circumstances support. A genuine lack of knowledge is different from consciously avoiding the truth about what you are taking.
Will You Travel Overseas to Defend a Military Drug Case?
We absolutely will fly anywhere in the world to defend a service member. We handle cases in South Korea and Japan, where military and local civilian authorities can both become involved. One has to understand the various civilian and military regulations at play when charged overseas. Experience matters in knowing how to fight back overseas. We examine the authorities involved and the setting of your case rather than assuming a stateside approach answers every issue.
What if I Already Admitted to Wrongdoing?
Well, that’s not a helpful position to be in, but stop discussing the allegation with investigators and give us a call. Reach out to us and we’ll shoot you straight on what you are facing. We review the actual statement, how investigators obtained it, whether it was voluntary, and what other proof supports it. An admission does not answer every legal or factual issue in the case. There is still time to examine your options and fight for your future.