COURT MARTIAL LAWYER FOR WRONGFUL USE OF DRUGS

At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.

Wrongful Use of Drugs Under Article 112a, UCMJ

Under Article 112a of the Uniform Code of Military Justice, a person commits wrongful use of drugs when they use a scheduled controlled substance, when they knew that they used the substance, and that they knew the substance used was what they believed it to be or of a contraband nature and that the conduct was wrongful. In addition, the UCMJ has additional aggravating circumstances which can increase the severity of the offense.
Those aggravating factors include that at the time the service member used the substance:
  • The substance was used during a time of war.
  • The substance was used while on duty as a sentinel or lookout.
  • The substance was used while on board a vessel or aircraft used by or under the control of the armed forces.
  • The substance was used while in or at a missile launch facility used by the armed forces or under the control of the armed forces.
  • The substance was used while receiving special pay under 37 U.S. Code section 310.

Understanding Article 112a – Navigating a Complex Minefield

There is a tremendous amount of misinformation passed around regarding military drug charges. Whether this comes from well-intentioned barracks lawyers, the Lance Corporal underground or someone who has “popped hot” before, a misunderstanding of the actual rules can lead to devastating consequences. Ignorance of the law is not a defense, so educate yourself on the reality of the situation and let’s separate fact from fiction.

Definitions and Instructions for Article 112a Drug Cases

Use of Drugs

“Use” means to inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance. “Use” includes such acts as smoking, sniffing, eating, drinking, or injecting. Under the UCMJ, use of a controlled substance is wrongful if it is done without legal justification or authorization.
Use of a controlled substance is not wrongful if such act or acts are:
  • Done pursuant to legitimate law enforcement activities. For example, an informant who is forced to use drugs as part of an undercover operation to keep from being discovered is not guilty of wrongful use.
  • Done by authorized personnel in the performance of medical duties or experiments. While this one defense is on the books, in over twenty years we have never seen it.   
  • Use of a controlled substance may be inferred to be wrongful in the absence of evidence to the contrary. Knowledge by the accused of the presence of the substance and knowledge of its contraband nature may be inferred from the surrounding circumstances. 

Knowledge of Drug Use – Innocent Ingestion

Under the UCMJ, you may not be convicted of the use of a controlled substance if you did not know you were using the substance. Your use of the controlled substance must be knowing and conscious. For example, if a person places a controlled substance into your food, drink, cigarette or vape without you becoming aware of the substance’s presence, then your use was not knowing and conscious.

Knowledge of the Illegal Substance

To be found guilty of Article 112a, you must have actual knowledge that the substance you were using was illegal or of a contraband nature. Like everything in the law, there are many nuances and exceptions. If you were using marijuana but thought you were smoking cloves, a legal substance, you would not be guilty of wrongful use of marijuana. On the other hand, if you were using marijuana, but though you were smoking hash, an illegal substance, the defense would not apply.
Should your case go to trial the reasonable doubt standard will apply and the jury will be instructed that if they have a reasonable doubt that you knew that the substance you used was of a contraband nature, but the jury was nevertheless satisfied beyond a reasonable doubt that:
  1. You did not know for sure that the substance was not of a contraband nature.
  2. You were aware that there was a high probability that the substance was or of a contraband nature; and
  3. You deliberately and consciously tried to avoid learning that, in fact, the substance was of a contraband nature, then they jury may treat this as the deliberate avoidance of positive knowledge. Such deliberate avoidance of positive knowledge is the equivalent of knowledge.
In other words, a jury can find that you had the required knowledge if they find either that you knew the substance you used was of a contraband nature, or deliberately avoided that knowledge. Importantly, we emphasize that knowledge cannot be established by mere negligence, foolishness, or even stupidity. The burden is on the prosecution to prove every element of this offense, including that you knew that the substance you used was of a contraband nature. Consequently, unless the jury is satisfied beyond a reasonable doubt that you either had actual knowledge that the substance was of a contraband nature, or that you deliberately avoided that knowledge, then the jury must find you not guilty.
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Exceptions to Wrongful Use under Article 112a, UCMJ

The burden of going forward with evidence with respect to any exception is upon the person claiming its benefit. If the evidence presented raises such an issue, then the burden of proof is upon the United States to establish beyond a reasonable doubt that the use was wrongful.
If at trial, evidence has been introduced raising an issue of whether your use of a controlled substance was wrongful because you were used the drug in the performance of your duty or that the substance had been duly prescribed by a physician and the prescription had not been obtained by fraud, then a valid defense is available under the law. This is known as innocent use. In determining this issue, the jury must consider all relevant facts and circumstances raised at trial. The burden is on the prosecution to establish your guilt beyond a reasonable doubt. Unless the jury is satisfied beyond a reasonable doubt that your use of an illegal substance was not in the performance of your duties or because of a properly obtained prescription duly prescribed for the accused by a physician, then you may not be found guilty.

Regulatory Defects in Collection of Urinalysis Samples.

Just because a controlled substance was found in your urine, doesn’t mean you knowingly ingested a controlled substance. In addition to this, the prosecution must prove that the substance was indeed an illegal substance and you knowingly ingested it. And that isn’t as easy as you think. In addition, there may have been issues with the uranalysis collection, often known as “technical” deviations.
When the evidence reflects “technical” deviations from governing regulations which establish procedures for collecting, transmitting, or testing urine samples, you may have a defense should your case go to trial. Military Judges, however, should exclude drug test results if there has been a substantial violation of regulations intended to assure reliability of the testing procedures.
If evidence is raised at trial that the government did not strictly comply with all aspects of Army Regulation 600-85 or the controlling service regulation governing how urine samples are to be collected, transmitted, and tested, then you many have a defense. To be convicted, the evidence must establish the urine sample originated from you and tested positive for the presence of a controlled substance without adulteration by any intervening agent or cause. Deviations from governing regulations, or any other discrepancy in the processing or handling of your urine sample, may be considered by the jury in determining if the evidence is sufficiently reliable to establish that you used a controlled substance beyond a reasonable doubt.

Maximum Punishment For Drug Use

  • Amphetamine, cocaine, heroin, lysergic acid diethylamide, methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances: Dishonorable Discharge, Total Forfeitures, 5 years prison time, reduction to E-1.
  • Marijuana, phenobarbital, and Schedule IV and V controlled substances: Dishonorable Discharge, Total Forfeitures, 2 years prison time, reduction to E-1.
  • When aggravating circumstances are alleged: Increase maximum confinement by 5 years.

Fighting Your Drug Charges

As complex as this area of law is, you’re probably wondering if fighting your charges is worth the effort. We are here to say that you are worth the fight. Service members accused of use of a controlled substance are easy prey for military prosecutors because they assume that the case can’t be fought and it’s a foregone conclusion that they will lose. What they do not account for is that the right defense in court can make it extremely difficult for the prosecution to prove beyond a reasonable doubt that you are guilty of misconduct under Article 112a.

Basic Questions You Must Answer to Fight 112a Charges:

  • First, can the prosecution even prove that the substance was illegal? If so, can they prove you had the requisite knowledge and criminal intent? Was there a valid prescription for the substance?
  • Second, in cases involving urinalysis, was the test completed appropriately? Did the lab perform its job correctly? Were there any technical mistakes?
  • Third, could this be a case of innocent ingestion where you had no idea you even ingested or used the substance. From something as simple as being drugged to a false positive test at the laboratory. For example, ingesting Benzedrex inhalers could lead to a positive test for methamphetamines.

Real Consequences of a Drug Use Conviction.

Assuming you have no options is exactly what the government wants you to do. Taking steps to defend yourself will surprise the prosecution and give you the resources you need to put up a fight in your defense. Do not expect the military to break out the kid gloves because you have been a good Soldier in the past. We’ve seen instances where service members assumed their charges would be handled at the lowest level, only to be dragged to a court-martial and sentenced to a punitive discharge and prison.
  • Even minor infractions could lead to a punitive discharge. There is a zero-tolerance drug policy that is in full force across all branches of the U.S. Armed Forces. This is not the time for rose-colored glasses. Your military career and benefits are at stake.
  • Your civilian career could also suffer. A punitive discharge or even a discharge Under Other Than Honorable Conditions could leave future dream jobs out of reach.
  • Even if your drug case is taken to NJP or Article 15 and you are found guilty there, your career is all but finished. You will likely then be chaptered out or taken to an administrative separation boar. Winning your case should be a top priority if you have any desire to advance or remain in the military. 
If you ready to fight your drug use charge, give us a call and we are happy to do a consultation with you. At Bilecki Law Group, we will always shoot you straight and tell it like it is. If you are ready to fight, so are we.

Don’t just plead guilty… Fight Back !

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