Anyone who has served in the military knows the experience of having a total stranger watch you pee in a cup. What most people do not know is what happens with your sample. How reliable is the system? Military members rightly view the system with a healthy skepticism especially when your career and life could rely upon a massive laboratory testing thousands upon thousands of samples. If you are unlucky enough to test positive, the most important thing you can do is to not answer any questions but immediately ask for an attorney.
Most people convicted for using drugs in the military are convicted because they opened their mouth to talk. Whether you talk to your friends, colleagues, or military authorities, you are in trouble either way. If you remain silent, your case is what we call a naked urinalysis, meaning the military has to try to convict you on the science alone of a single test. More often than not, that is not enough to overcome proof beyond a reasonable doubt, however conviction rates skyrocket when they can point to the drug test AND an additional fact.
When you test positive, you are brought in for an interview, read your Article 31 rights, and if you are foolish enough to talk to them, the question posed to you will be “do you know how you could have tested positive?” This is the worst time in the world to take a guess because your words will always come back to haunt you. Most military members do not know how errors occur in the drug testing process, so a common guess is “I was at a concert and I think some people around me might have been smoking”, or something to that effect. Let me tell you, at your courts martial, the government expert will testify at length about the DoD cutoff and experimental testing. First, the DoD cutoff is an artificial threshold, meaning in order to test positive for marijuana for example, you must have 15 nanograms of marijuana metabolites in your urine to test second-hand-smokepositive. The DoD did not want to leave the door open to passive inhalation, or the argument that there is cocaine particles on every dollar bill, so it could have come from that source. The expert will testify that the only way you could have tested positive is direct ingestion. Let’s talk about passive inhalation for a second because I see that a lot. In order to passively inhale enough marijuana, you have to have what is called extreme use. The study I have in mind defines extreme use as someone locked in a room the size of a small bathroom with sixteen marijuana cigarettes burning for an hour. Only then did that individual test positive from passive inhalation. That is clearly something you would notice. So if you float the passive inhalation idea to investigators, now you look like a drug user AND a liar. It is best to say nothing and let your lawyer do the talking for you. It is not your burden to prove how you are innocent, it is up to the government to prove you used drugs. Do not help them by talking and adding facts they can point to along with the drug test.
The drug testing laboratories will testify that most errors occur during collection. When you sign in, you have to take your whizinnatoruniform top off and surrender your military ID. You generally are required to wait five minutes or so before you are called to urinate. When you surrender your ID, the purpose is to control you. You cannot do your job or travel freely without your military ID, so taking it is realistically a show of authority by the urinalysis folks. The reason for taking your top off is to make sure you do not have any hidden devices. Go to any base, and they will have stories about military personnel using tubing, prosthetic penises, or other devices to defeat the system. Every base is going to feel your collection bottle to make sure the urine is warm, more specifically body temperature. The key thing the observer is looking for is whether the urine came directly from your body, they are looking for exactly these types of devices. Remember, they are trying to assert authority and make it more difficult to cheat.
One of the most important parts of the process is signing in. Labels are applied to the sign in register and your collection bottle. You are required to verify that the numbers on the register and the bottle match, then initial or sign to indicate you have verified the numbers. Once you have done that, you are ready to head to the bathroom. But hold on, where did those bottles come from? We blindly trust that the bottles are clean. You are instructed to look into the bottle but not blow into it, and the collector does the same. So it is as clean as the naked eye can detect, but the urinalysis program is cheechdesigned to detect microscopic particles you cannot view with the naked eye. So what happens to the bottles before they get there? No one really knows. They are in the hands of the manufacturer and arrive in a sealed box to the base. No one tracks if the employees of the manufacturer are using drugs, washing their hands, or applying any standards whatsoever. The military branches do not sanitize the bottles when they get them. Let me repeat that, the Drug Demand Reduction Office typically falls under the Medical Group, yet they do not sanitize their instruments before collecting your sample. There is no record of who was working with your bottle before it was delivered to the military, and you have no idea what microscopic particles may have been in that bottle. This is part of why we should not place blind faith in the testing process.
Shipping and Packing: Your sample is not tested at your base. You and everyone you provided samples with has your bottles packed in a box and shipped FedEx to one of the few drug testing laboratories the DoD runs. You may notice that nowhere on your bottle is your name, instead it has a laboratory accession number (LAN). When the box arrives at the lab, there is a single human whose only job is to unpack hundreds, possible thousands of bottles every day. Anyone who has done mind numbing clerical work will tell you that mistakes will happen. When your sample is tested, it is not tested from your bottle. The person in the receiving room pours your sample into a test tube (aliquot), and the only link between you and the aliquot is if this person applied the right LAN number on the aliquot. The drug testing labs swore up and down that lab-accidentthere was no way a mistake could ever happen, then a mistake happened. A false positive was reported to a base, but fortunately in that case, the mistake was discovered and corrected. Now the labs say there is no way it could happen again. Now how can they guarantee that? On all the positive samples sent out, they do not follow up when a not guilty verdict is earned. When a conviction happens, they do not double check and verify the proper person’s DNA was in the collection sample. They check to make sure there are no anomalies in the paperwork and then stand by the result as accurate. When the labs say it could never happen again, that sounds an awful lot like “unsinkable” to me. The entire system is only as dependable as the people working in it, and we know that people can and will make mistakes.
Drug Testing Process:
Your sample, or someone else’s sample with your LAN number will be subjected to two tests. The Immunoassay test and the Gas Chromatograph Test (GCM). First, the immunoassay test, your sample and everyone in your testing group will be tested together. All of the aliquots are loaded into the machine. Between every sample, there is a blank sample which is designed to prevent contamination. Hidden in the samples, are blind quality control samples that will test positive. The government expert will talk about these blind samples and testify that because the blind quality control samples were detected, it means the system works. The immunoassay test cannot tell how much of a drug is in a sample, it is more a yes or no test. If your sample tests positive, you will proceed to the GCM test. They will go back to your sample bottle which may or may not be properly labelled, and pour another aliquot also labelled with the LAN number. This new sample is run through the most sophisticated machine the lab has. Mistakes can also be made in this process. For example, if your sample is improperly pipetted, or if the pipette tips are improperly applied so your sample is contaminated, your sample can show a false positive. You can expect the government expert to go on at length about your drug testing report. He or she will show all of the GCM reports for the blind quality control samples, and how they are within expected limits which means the testing equipment is accurate. Finally, he will say your sample was tested on accurate equipment and will conclude that you tested positive because at some point you ingested the drug.
Here is what the government expert will not be able to say. He or she cannot say how much drug was in your system. Your sample was collected at a definite point in time. When drugs are ingested, they have a measurable impact on the body. The amount of drugs in your system will rise, ultimately peak, and then taper off. The government expert will not be able to tell if you were peaking or tapering off. He or she cannot say how much you used or when. The government labs do not test for creatinine, which would tell them how concentrated your urine is. Concentrated urine will test at higher levels than diluted urine. Since most people are ordered to pee in a cup first thing in the morning, most samples will be concentrated because you have not been drinking water all day. Most importantly, the expert will not be able to tell how the drug was ingested or whether or not you were aware of the effects or the presence and nature of the substance. This opens up all sorts of possibilities. Could someone have slipped something into your food or drink? Did you grab the wrong pills in the morning? Did you take a substance not knowing it could create a false positive? When the government expert cannot exclude those possibilities, that makes it very difficult for the government to prove you knowingly used an illegal substance. That is why it is so important to NOT TALK to anyone about your drug test.
What happens when I get the positive drug test?
If you are nervous about your drug test, you should know it typically takes around 30 days for your base to get results. If you are below the artificial DoD cutoff level but still had some drugs in your system, it will count as a negative result and will stay-silentnot get reported to your base. The worst thing you can do if you are nervous about your test is start asking around about it. Just be patient and wait. In the event your sample does test positive, you will be called in and read your Article 31 rights. The only acceptable response is to say “I want a lawyer”. Do not volunteer any information, do not guess, just shut your mouth and ask to speak to a lawyer. Whether you ask for a lawyer or make a statement, the next thing you will be required to do is to provide another sample. Your Commander wants to know if you are fit for duty, so he or she will order another test to determine whether you still have any illegal substances in your body. If you test positive for the second test, they will test you again when those results come back, and will keep going for every test.
Whether you test positive or are worried about testing positive, you need to say nothing to authorities or friends and retain a lawyer immediately. The drug testing process is not perfect, mistakes are made, and you need a lawyer who knows the system and who has had success explaining the weaknesses of the system to a courts martial panel. If you need advice or assistance, please contact us at the Taylor Defense Firm for a free consultation. For more information email me at Scott@taylordefensefirm.com, or call me at (805) 538-0455. Good luck!