Defenses

Court Martial Lawyers – Alexandra González-Waddington & Michael Waddington Attorneys at Law

1. Passive inhalation. For this defense to be successful, a Soldier generally must have been exposed to concentrated drug smoke in a small area for a significant period of time. See Major Wayne E. Anderson, Judicial Notice in Urinalysis Cases, Army Law., Sept. 1988, at 19.
2. Innocent ingestion.
   1. United States v. Ford, 23 M.J. 331 (C.M.A. 1987). Accused suggested wife planted marijuana in his food without his knowledge.
   2. United States v. Prince, 24 M.J. 643 (A.F.C.M.R.1987). Accused’s wife allegedly put cocaine in his drink without his knowledge to improve his sexual performance.
   3. United States v. Robertson, 39 M.J. 211 (C.M.A. 1994). Accused’s
      roommate testified that she put cocaine in beer which accused
      unwittingly drank. Government improperly cross-examined roommate
      on prior arrest for conspiracy and attempted burglary, but error was
      harmless.
3. Innocent inhalation.
   1. United States v. Perry, 37 M.J. 363 (C.M.A. 1993). Accused’s
      explanation that he unwittingly smoked a filtered cigarette laced with
      cocaine 28 hours before test was not credible, given expert’s testimony
      that (1) accused would have to ingest an almost toxic dose of cocaine to
      achieve the 98,000 ng/ml test result his sample yielded, and (2) cocaine
      mixed with a cigarette would not work since cocaine will not vaporize or
      pass through a filter. Erroneous admission of evidence that accused
      acted as informant was harmless.
   2. United States v. Gilbert, 40 M.J. 652 (N.M.C.M.R. 1994). Accused
      allegedly borrowed cigarettes from a civilian which, unknown to the
      accused, contained marijuana. At trial, the civilian refused to answer
      questions about what the cigarettes contained. Defense counsel was
      ineffective for not seeking to immunize the civilian.
   3. Innocent absorption through contact with drugs on currency: unlikely to be a
      successful defense. See Mahmoud A. ElSohly, Ph.D., Letter to the Editor:
      Urinalysis and Casual Handling of Marijuana and Cocaine, 15 J. Analytical
      Toxicology 46 (1991).
   4. Use of hemp related products. Hemp products come from the same plant as
      marijuana. See The Art of Trial Advocacy, Tips in Hemp Product Cases, Army
      Law., Dec. 1998, at 30. Note: AR 600-85, para. 4-2p, prohibits the ingestion of
      products containing hemp and hemp oil.
   5. Switched Samples (“chain of custody” broken).
      1. United States v. Gonzales, 37 M.J. 456 (C.M.A. 1993). Where observer
         had no recollection of how the urine was transferred from one container
         to another, but testified that the urine was never out of her sight, military
         judge properly overruled chain of custody objection.
      2. United States v. Montijo, No. 30385, 1994 WL 379793 (A.F.C.M.R. June
         28, 1994) (unpublished). Government was not required to establish
         chain of custody for sample bottle from the time of its manufacture until
         its use.
   6. Laboratory Error.
      1. Unites States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995). Urinalysis test
         results were improperly admitted where laboratory failed to retain
         accused’s positive urine sample after test was completed. Regulation
         requiring retention of sample conferred substantive right upon accused.
         Conviction set aside.
      2. Problems at Fort Meade Laboratory. On 24 July 1995, the commander
         of the Fort Meade Forensic Toxicology Drug Testing Laboratory
         discovered that lab technicians had violated procedures by switching
         quality control samples. All positive test results were still scientifically
         supportable, since the GC/MS tests were not affected.
      3. Good Military Character. United States v. Vandelinder, 20 M.J. 41, 47 (C.M.A.
         1985). Good military character is pertinent to drug charges against an accused
         because it may generate reasonable doubt in the fact-finder’s mind.
      4. Specific Instances of Non-Drug Use to Rebut Permissive Inference. In United
         States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005), the defense requested four
         witnesses to testify that they knew MSgt Brewer and that they had never seen
         MSgt Brewer smoke marijuana as part of the defense “mosaic” innocent
         ingestion defense. The military judge denied the proffered witness testimony
         ruling that this was improper character evidence under Mil. R. Evid. 405, as
         specific instances of conduct of non-use. The CAAF held that the military judge
         erred in denying the requested witnesses because it was relevant. Findings and
         sentence set aside.

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