Procedures for Taking Test

Information on the procedures for taking test:

  1. militarydefenselawyers341Observation During Testing. Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989).
    Direct observation of female officer providing sample by female enlisted person at a distance of eighteen inches did not make collection of urine unreasonable.
  2. Refusal to Provide Sample. United States v. Turner, 33 M.J. 40 (C.M.A. 1991).
    Accused’s submission of toilet water as urine sample did not constitute obstruction of justice, but could have been charged as disobedience of an order.
  3. Inspection of AWOL (UA) Personnel.
    1. Soldiers who are absent without leave may be subjected to compulsory urinalysis testing pursuant to command policy to inspect the urine of
      such Soldiers. Cf. United States v. Bickel, 30 M.J. 277 (C.M.A. 1990)
      (compelling Soldiers who previously tested positive for drug use to
      submit to second urinalysis is a proper inspection).
    2. Such an inspection must be conducted in accordance with command
      policy.

      1. United States v. Daskam, 31 M.J. 77 (C.M.A. 1990). Accused,
        who was late for duty, was not an unauthorized absentee within
        meaning of policy requiring unauthorized absentees to submit to
        urinalysis; test of accused’s urine was not a proper inspection.
      2. United States v. Patterson, 39 M.J. 678 (N.M.C.M.R. 1993).
        Testing of Soldier returning from unauthorized absence was not
        a proper inspection because it was not conducted in accordance
        with instruction requiring such inspections. Commander who
        ordered test did so based on the “seriousness” of the absence,
        rather than on a random basis.
    3. Retesting Soldiers. Requiring retesting, during next random urinalysis, of all
      Soldiers who tested positive during previous urinalysis is a proper inspection.

      1. United States v. Bickel, 30 M.J. 277 (C
        .M.A. 1990). Commander’s
        policy letter which required retesting of Soldiers who were positive on
        previous urinalysis was proper.
      2. United States v. Ayala, 69 M.J. 63 (C.A.A.F. 2010). Commander’s
        policy letter required “all members whose urine tests positive for illegal
        drugs to provide another sample for testing by the end of the first duty
        day following receipt of a positive test result.” Despite the SJA’s advice
        that stated the policy would “decrease litigation risks and costs, and
        potentially aid in swifter judicial action,” the commander’s stated intent
        of promoting “security, military fitness, and good order and discipline . .
        . and not a criminal investigative tool,” showed that the policy was a
        proper inspection under Mil. R. Evid. 313.
    4. Retesting Samples. Selection of negative samples for additional testing is
      improper unless done on a random basis. United States v. Konieczka, 31 M.J.
      289 (C.M.A. 1990). Installation alcohol and drug control officer’s decision to
      select urine sample which had pre-tested negative for further testing at drug
      laboratory based on belief that sample might test positive constituted
      unreasonable inspection.
    5. Deviations in Procedures.
      1. Deviations from regulations generally do not affect admissibility of test
        results. United States v. Pollard, 27 M.J. 376 (C.M.A. 1989); United
        States v. Timoney, 34 M.J. 1108 (A.C.M.R. 1992).
      2. Gross deviations from urinalysis regulation may allow exclusion of
        positive test results. United States v. Strozier, 31 M.J. 283 (C.M.A.
        1990).
    6. Accused randomly selected by computer for urinalysis testing as allowed
      by the applicable Air Force Instruction. Method was proper even if there
      were minor administrative deviations. United States v. Beckett, 49 M.J.
      354 (C.A.A.F. 1998).

Refusal to Provide Sample.

Deviations in Procedures.