Accidental Ingestion article 112a

[str8trippin]

What is the name of your state? NC

Long story short, I was wondering how on Earth one can somehow prove that their ingestion of an illegal substance was not "wrongful and willful." I've looked over many courts-martial cases, and appeals, and apparently as far as the government is concerned, a simple urinalysis pop, and the accompanying testimony by a lab worker is solid enough evidence to convict an individual.

Now, I know the actual article in question says "wrongful and willfully" so with the odds stacked against a person, how can they possibly prove their innocence? Would things such as sworn statements by civilians that were present during the innocent ingestion help?

I mean, my buds got a flawless military record, and absolutely no civilian record either, not even a speeding ticket. He's a corporal in the infantry, with 2 combat deployments, good conduct medal, NAM, Combat Action, etc, and average pro/con of 4.6/4.6. He has been in active duty for 3 years, and 10 months, and does not want to re-enlist. His EAS is in about a month or so.

He swears up and down to everyone on God's green Earth that he did not knowingly ingest any illegal substance, the civilians that he was spending time with and partying with on a regular basis however told him (ex post facto) that they knew he was exposed to cocaine in multiple forms, apparently these people put cocaine powder into hard alcohol, and he has theorized that that is the only possible way that it got into his system. He is incredibly upset because he has such a short amount of time left in the Marine Corps, and said that if he was dumb enough to want to abuse an illegal drug, he simply would have waited the 30 days until his EAS.

What are any things that he can do to help get himself out of this bind? The charges are still in the preliminary phases, I.E. he hasn't been informed of whether or not it would be a courts-martial (most likely) or a stiff NJP. But in any case, he doesn't want either on his record since he's an upstanding Marine. He was wondering if he got the civilians that were with him to write up statements, if that would help. Any help at all in this matter would be of great help to my buddy. Thanks.What is the name of your state?

[RealAmerican]

A court martial will actually be in his favor. NJP does not require that a command finds an absolute proof of guilt, only that the preponderance evidence prove the charges are more likely to have happened than to not have happened. He could get an independent lab to perform a hair follicle test but this may not hold water with the Marines for many reasons. The fact is, that your friend will be processed out of the Marines unless he can prove his innocence in a court martial. He is pretty much stuck unless he can get the person who actually put the drugs into his drink to admit it. The only way he would have been able to protect himself is to report the drugging before he tested positive.

Your response and his, "He didn't know that he was drugged."
The Marine Corps response, "He was drinking so heavily that he couldn't detect the presence of high amounts of powerful amphetamines in his system, he needs to attend rehab before we separate him."

It is a horrible way to end a distinguished career and I am in no way telling your friend to bow out. His chances of winning this and proving his innocence are slim to none. He made a bad decision by hanging out with people that use drugs and now he is paying a high price for it. I have seen it happen before and I have seen that same defense used many, many times. Each result was the same as the last, general discharge with no benefits. I recommend that if your friend wants to fight this he retains a lawyer that specializes in military law right away. This should cost anywhere from 5000 to 6500, but will be more if he chooses to pursue an actual court martial. Good Luck.

[cyberspook]

Boy, this is a toughy. REALAMERICAN is right you might want to take this to Court Martial. You or him need to decide if you can prove your case to win this.

The Marine Corps has heard the defense "I didn't know I took something" many a time and that defense is summarily denied. In other words, the burden of proof is on you.

If you don't think you have the evidence (written statements are probably not going to be enough), then you should really consider eating this at NJP.

Oh, and some personal advice: Stop hanging with these type of people.

Best of luck, you're going to need it.

[str8trippin]

Thanks for the hasty responses. Well first off, we aren't sure yet whether or not this will stay at NJP level, or be taken to Courts-martial, the prosecution has yet to decide that. In the event of an NJP, that'd be fine, he'd bite the bullet finish the last month in, and get out, but we fear that may not be an option, and that they will opt for a courts-martial that he has no real chance of fighting.

He has contacted an attorney that specializes in military cases and was a former JAG. That attorney claims that this case is very winnable due to his character as a Marine, completely clean records on both sides, and circumstances in extenuation and mitigation. That attorneys record for fighting positive military urinalysis' tests is like 22 wins to 3 loses.

So if I had a written or in person statement from some of the civvies that were at the partys where the drug was used stating that "yes we had drank hard liqour that had cocaine in it ,in his presence, without his knowing, and that he ingested numerous drinks from that bottle and none of us mentioned to him what was in it until weeks later" would that help his case at all, because two of the people that witnessed this event are willing to stand up for him, and speak on his behalf since they know it wasn't his fault at all.

The only reason he was spending so much time with those "types of people" is because he was planning on moving into that apartment once he EAS'd so he'd have a place to stay down here.

Thanks again, me and my bud appreciate the input!

[badapple40]

Unlike "RealAmerican," I believe that this case is winnable, IF the facts as you've posted them are 100% true.

The government obtains a presumption that a positive pop on a urinalysis is wrongful and willful. The defense bears the burden of rebutting that presumption.

Rebutting that presumption will be done by: 1) Having your friend testify that he did not wrongfully and knowingly ingest cocaine; and 2) Having either the civilian who spiked the booze or someone who saw the civilian spike the booze testify that the booze was spiked with cocaine, that the spiking was done without the knowledge of your friend, and that your friend was not aware that the booze was spiked at the time he consumed it.

If both of those facts are true, the trial counsel (prosecutor) won't have much to go on in the way of cross examination or rebuttal witnesses.

If that happens, I would think there is a 99% chance your friend will beat the charges, finish out his term, and be honorably discharged.

He will also want to talk to the JAG defense counsel and get them in the loop. He should not make any statements regarding any of this to anyone he works with or his command, in the meantime.

[fozzy2]

I'll throw in a curve-ball the prosecution might pitch at you. Although your friend says the "ingestion" was accidental, did your friend know or should have known that illegal drugs were being used around him? Would that have been a violation of any standing orders? More specifically, expect them to look very hard into whether your friend knew of any UCMJ violations (did he see/know of another marine taking, selling, or possessing drugs?). You said he was partying "with civilians", but was there *any* other military involvement or military people involved? If so, the prosecution may well tack on Article 1137 (duty to report) violations or equivalent. Then you may get one of those ugly situations where you 'win' the case in chief (drug use) but lose on another count (failure to obey a general order) -- and might still get the punishment you were trying to avoid.

My second concern would be your witness/witnesses. It is very easy for people to claim "I'll go into court and testify for you" when they may be implicated in crimes themselves. But when it comes time, and the possible implications become clear, all that good intention is irrelevant. Most defense attorneys can't count the number of time they've heard "My good buddy" or "My relative" is willing to testifty about this or that. But when given 5th amendment warnings and realizing that now *they* might become investigate targets, they suddenly can't/won't testify. Or their memories suddenly become hazy, at best.

I agree that you've got the good potential for a defense, and you'll want to discuss it closely with your attorney. But there are often "other charges" lurking out there, and being a defendant can be mighty lonely (i.e. everyone will abandon you). So don't uncork the champagne just yet..... and when you do -- for gawd's sake --- make sure it isn't spiked!