Interviewer: In the military, they wait on punishment until a member tests positive several times for drug use?
Chris Cazares: It does depend on what you decide to do. For example, if you’re in the Army and they get the first test results, they may stop collecting at that point because they’re going to discharge you anyways.
After an Initial Positive Drug Test, Some Military Branches Continue to Collect Evidence against a Member to Further Prove His or Her Criminal Behavior
However, if, for instance, you’re Board entitled, so if you are in the Army and you test positive and you want to fight it, that’s still due process that has to be followed because now they have to collect all the evidence.
They will have a hearing that looks just like a court-martial, but it’s really a decision or a determination whether or not they’re going to stay in the system.
If you’re in a branch of service or you have a commander that takes drug use very seriously, they’ve gotten the evidence two to four weeks after the collection of the urinalysis, so at that point they’re making a decision whether or not to prefer charges.
In that time of making a decision and collecting evidence, you can continue to be tested, because they’re getting further evidence of your criminal behavior.
A court-martial doesn’t happen overnight. Obviously, if it were to go to a court-martial, to prove the case, the government has to bring in an expert. They have to bring people from the testing facility. They have to show the chain of custody. Just because you test positive, it doesn’t necessarily mean that you will be found guilty.
Military Members That Test Positive for Cocaine Have a Higher Acquittal Rate during Their Hearings
With certain kinds of drugs, such as cocaine, the chance for an acquittal is much greater than if you’re prosecuted for marijuana, and that’s because of the effect of the drug. For instance, you could have a miniscule amount of cocaine present in your system.
Some people call it “the cocaine fairy” and it can transfer from the food chef that is working at the restaurant. A particle of cocaine could fall from his nostril, fall into your food, and you could, potentially, test positive for cocaine a day later.
Chris Cazares: Because of the randomness of the cocaine, an acquittal can become much more likely. For instance, the defense may also provide a witness that testifies the individual was in a place where he or she wouldn’t have been using drugs.
Are These Charges Defensible? Military Character Defenses Can be used during Hearings for Drug-Related Offenses
You put on a good military character defense, which essentially would be people saying what an outstanding member of the unit or soldier or sailor or airman he or she is, and they have no reason to believe that the individual is a drug user. If there is no other evidence other than the drug test to establish that this individual committed that crime, the chance of an acquittal is going to go way up.
Marijuana Ingestion Is a Conscious, Not Accidental Action
If you compare accidental cocaine consumption to marijuana, the opportunity or the possibility of accidental or unknowing ingestion is much less. Marijuana smoking is a more proactive and conscious ingestion. You certainly would be aware of that you are physically doing the action that leads to the ingestion of the drug.
If you make a statement and you claim, “Oh, I have no idea how this got into my system.” Someone could easily counter with, “Really, you didn’t feel high?”
The way in which marijuana would go into your system would be much different, like the same thing with prescription drugs. For example, no one can dribble oxycodone all over your food.
Attorney Cazares Believes the Defense for Military Members Accused of Drug Use Differs Depending on the Class of Drug Involved
The possibility of a defense is going to depend on the drug itself, and different places you could’ve been, and the different people who can vouch for your character.
If a Military Member Learns that He or She Has Tested Positive for Drug Use, Should They Assume They Will Be Found Guilty?
Just because you tested positive for drug use does not mean that you should talk to authorities. It does not mean that you’re going to be found guilty. It just means that you need to find an attorney and you need to start discussing strategies.
Interviewer: Do a lot of military members feel doomed if they test positive for drug use?
Or do many want the chance to fight the charges?
It is Common for People to Want to Explain Their Roles in Situations Where They Perceive They Are in Trouble
Chris Cazares: I think it is just human nature that you want to fully explain anything that does not reflect well on you. So, if you are confronted with evidence and you know that that evidence is likely to be true, you’re more likely to talk.
During a Military Investigation for Drug Use, It Is Expected That the Military Investigators Will Misrepresent the Facts in the Case during an Interview
You’re going to confirm the drug use, because investigators in the military are not required to tell you the truth. They, in fact, are expected to lie to you about the results of your test, as well as the evidence surrounding the test.
If an individual believes that they can get some kind of favor from the command for complying with the investigator, that investigator can’t tell them outright that they will get them a positive result from a commander.
Is It Crucial to Have Legal Counsel before Making Statement to the Military’s Special Investigators about Drug Use?
Instead, they misrepresent that a bit. The investigator might say that compliance should or could be helpful and that they’ll put in a good word for them and that’s completely, under the law, okay to claim. So, military members, at that point, feel that they might as well fully confess to using drugs.
However, it is imperative to have counsel involved prior to making statements. You can always make that statement to the commander later and you can always make that statement to the investigator later but what you can’t do is take your words back.
The More Evidence That Has Been Collected against You the More Important it becomes to Retain Counsel
The old adage of “lawyering up” still proves true, even when, and especially when you believe that there’s overwhelming evidence against you.
In many cases, an individual goes in and essentially “gives away the store” to the investigator, because they had a belief they knew their criminal culpability and they assumed that the investigator does as well.
It’s not an equal playing field, and it just goes back to, “Why do you need an attorney?”