Tips for Defending Wrongful Cocaine Use Cases

These tips apply to criminal charges referred for trial by court-martial or alternatively, administrative separation actions.

PRACTICE POINTERS: When your client is charged with wrongful use of cocaine, you should review the following list in preparation of your case.

• Legality of Urine Sample Collection
• Validity of Collection Procedures
• Validity of Urine Specimen Testing Procedures
• Obtain an Expert
• Request Testing of Additional Metabolites
• Request Negative Test Results Above “0” and Below “100 ng/ml” Cut-Off
• Professional Literatur
• Leverage your client’s confrontation right

1. Legality of Urine Sample Collection – begin your analysis by assessing the government’s basis (i.e. lawfulness) for collecting your client’s urine sample. If you suspect an unlawful collection, explore potential recourse via the 4th Amendment and/or
   Section III of Military Rules of Evidence (MRE) by filing motions to suppress in limine to exclude the sample at courts-martial setting, or moving to preclude its use before an ADMIN-SEP Board IAW AR 15-6, Para. 3-7c(7).
2. Validity of Collection Procedures – collection procedures emanate from two sources: AR 600-85, Appendix E, and SOP of your client’s Unit Prevention Leader (UPL). Carefully review the litigation packet for the unit’s compliance with both the AR and SOP.
   Though minor deviations in procedure do not generally affect admissibility of urine samples at trial, United States v. Pollard, 27 M.J. 376 (C.M.A. 1989), gross deviations may serve as the basis for successful motions in limine. United States v. Strozier,
   31 M.J. 283 (C.M.A. 1990).
3. Validity of Urine Specimen Testing Procedures – DOD requires forensic laboratories to 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. Carefully review the litigation packet to ensure all three
   tests were performed. If there are any discrepancies or omissions in this three-step testing requirement, you may have a gross deviation in procedure sufficient to exclude the positive test results. Also, request Greystone Reports – quarterly independent
   quality control reports – from the forensic laboratory that tested your client’s urine specimen. These reports may reveal relevant deficiencies helpful to your case.
4. Obtain an Expert – retain a forensic toxicologist at all costs. This pertains to clients facing either court-martial or separation. Urinalysis is based in science and most lawyers are neither scientist nor scientifically or mathematically inclined.
   Experts can help you 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.
5. Request Testing of Additional Metabolites – DOD requires that urinalyses are reported as positive for cocaine if Benzoylecgonine (BZE), a cocaine metabolite, is detected in a urine specimen in the quantity of 100 ng/ml or more. BZE will be present in
   a Soldier’s urine if either 1) cocaine was ingested (whether knowingly or innocently) or 2) cocaine was added to the urine sample after collection. In discovery, request, and if denied, move the Court for, testing of the following additional and arguably
   more reliable cocaine metabolites: Ecgonine Methyl Ester (EME); m-Hydroxybenzoylecgonine (m-OHBZE); p- Hydroxybenzoylecgonine (p-OHBZE); and n-Desmethyl Benzoylecgonine (norBZE). These metabolites are only produced when the human body metabolizes
   cocaine. They cannot be produced by introducing cocaine into or tampering with a urine specimen.

There are two caveats with requesting this additional metabolite testing: (1) courts are not required to order additional metabolite testing; rather, the decision to do so rests within the discretion of your Military Judge and/or Convening Authority,
See United States v. Mosley, 42 M.J. 300 (C.M.R. 1995), see also United States v. Metcalf (A.F.C.M.R. 1992); and (2) additional metabolite testing can work against your client as much as it works for him.

1. Request Negative Test Results Above “0” and Below “100 ng/ml” Cut-Off. During discovery, request this information to determine if there exists evidence, regardless of drug type or metabolite quantity, that your client has used cocaine or other unlawful
   drugs in the past. Discovering this information is important particularly if your client intends to testify denying prior drug use. DOD forensic laboratories have information management systems that maintain urinalysis results, whether reported as
   negative or positive, for many years.

Though such negative test results were inadmissible in past cases, United States v. Johnston, 41 M.J. 13 (C.M.A. 1994), their admissibility at trial rests within the discretion of your military judge. If this information is admitted at trial or presented
to a board to impeach your client’s credibility on the issue of prior drug use, it could be devastating to the outcome of the proceeding from a defense standpoint.

1. Professional Literature – work closely with your expert to research pertinent professional literature that may be helpful to your theory of defense. For instance, the Journal For Analytical Toxicology has several articles on innocent ingestion; smoke
   exposure studies; consumption of Latin American teas, which are legally sold in the United States, but made wholly or partially with coca leaves; and other studies that may explain how or why your client tested positive for cocaine for reasons other
   than knowing and wrongful drug use. Many journal articles have been added to the DCAP Portal under the “Recent Articles” section.
2. Leverage your client’s confrontation rights- In Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009), the Court held that lab certificates prepared by analysts are 1) hearsay and 2) inadmissible at trial over defense objection. Now, to satisfy the Confrontation
   Clause of the Sixth Amendment, the prosecution must call the analyst to testify at trial. This need at courts-martial may help you in negotiating and especially if there is an unknowing trial counsel who wants to rush into court. See also DCAP Sends
   3-17 and 3-18.

The following page includes sample discovery request language.

SAMPLE DISCOVERY REQUEST NO. 1

All existing quarterly reports of Greystone Health Sciences for Fiscal Year (INSERT DATES). These requested reports may be procured through the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort Meade, Maryland. Although it is permissible
for the FTDTL to release these reports to Defense Counsel, FTDTL will only release these reports to Defense Counsel via a request from the Office of the Staff Judge Advocate.

SAMPLE DISCOVERY REQUEST NO. 2

All information contained within the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTL), Fort Meade, Lab Information Management System regarding “all” prior urinalysis test results for (ACCUSED RANK/NAME), to include, but not limited to negative
results where the reported ng/ml result for BZE was less than 100.

SAMPLE DISCOVERY REQUEST NO. 3

Defense requests that (ACCUSED RANK/NAME) urine sample, which was collected on or about 15 July 2008, be tested for the presence of ecgonine methyl ester (EME). EME is one of two metabolites tested for with urinalysis to determine if a Soldier unlawfully
used cocaine. Urinalysis for the second metabolite associated with cocaine use, benzoylecgonine (BZE), was performed on (ACCUSED RANK/NAME), urine sample by the U.S. Army Forensic Toxicology Drug Testing Laboratory (FTDTC) of Fort Meade, Maryland, on
or about(DATE OF TEST). This testing yielded positive results for the presence of BZE. Testing for the presence of EME, however, was not conducted. The Defense respectfully requests that the Government conduct additional urinalysis of (ACCUSED RANK/NAME),
ample for the presence of EME. This request is made in accordance with United States v. Mack, 33 M.J. 251 (C.M.A. 1991).

SAMPLE DISCOVERY REQUEST NO. 4

Defense requests that (ACCUSED RANK/NAME) urine sample, which was collected on or about(COLLECTION DATE), be also tested for the presence of additional metabolites, which are indicative of cocaine ingestion. Specifically, the Defense requests additional
urinalysis testing for the presence of m-hydroxybenzoylecgonine (m-OHBZE); p- hydroxybenzoylecgonine (m-OHBZE); and N-desmethyl benzoyl ecgonine (norBZE). The absence of these metabolites from his urine sample will support his defense against the pending
charge of wrongful cocaine use. Defense respectfully requests that the Government engage the Armed Forces Institute of Pathology in Rockville, Maryland to conduct the above-requested testing.