Proving Knowing Ingestion of Drugs
Legal information on proving knowing ingestion of drugs:
- To be guilty of wrongful use of drugs the accused must know that (1) he or she consumed the relevant substance; and, (2) the substance was contraband. United States v. Mance, 26 M.J. 244 (C.M.A. 1988).
- Presence of drug metabolite in urine permits permissible inference that accused knowingly used drug, and that use was wrongful. United States v. Green, 55 M.J. 76, 81 (C.A.A.F. 2001); United States v. Mance, 26 M.J. 244 (C.M.A. 1988); United States v. Alford, 31 M.J. 814 (A.F.C.M.R. 1990).
- Permissive inference of wrongfulness may be sufficient to support conviction despite defense evidence that ingestion was innocent. United States v. Ford, 23 M.J. 331 (C.M.A. 1987) (permissive inference overcame accused’s suggestion that wife may have planted marijuana in his food without his knowledge).
- Ensure that the instruction on permissive inference as to knowledge and
wrongfulness is not crafted in such a manner as to make it a mandatory
presumption. A permissive inference is constitutional; a mandatory presumption
is not. United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005) (instruction that
military judge gave was confusing to the extent that it appeared to shift the
burden to the accused to assert one of the three exceptions as to wrongfulness;
findings and sentence set aside).
- United States v. Pope, 69 M.J. 328 (C.A.A.F. 2011). Military Judge abused his
discretion in admitting a green detoxification drink under the doctrine of similar
physical evidence, and by not giving a limiting instruction that the exhibit was
entered into evidence for illustrative purposes only. The appellant had these
types of drinks in her possession prior to the urinalysis in question, but none were
recovered from the appellant directly. Government investigators purchased a
similar drink on the economy. The only difference between this drink and the
drinks that the appellant previously possessed was that the appellant’s drinks did
not have a label. The trial counsel introduced the green drink as a demonstrative
exhibit and also introduced expert testimony that these detoxification drinks,
combined with drinking large volumes of water, can cause the metabolite
concentrations to decrease, resulting in a negative urinalysis test.