Q. I was arrested off base for DUI. What will happen and what should I do?
A. Navy personnel arrested off base for driving under the influence must prepare for legal battles on multiple fronts. You could face prosecution under the state's DUI laws in a civilian court and also a charge of drunken operation of a vehicle in violation of Article 111 of the Uniform Code of Military Justice at court-martial. Alternatively, you could go through captain's mast and be threatened with severe non-judicial punishment.
The consequences of a DUI on a Navy member's career are severe. Under SECNAVINST 5300.28E, Navy personnel twice convicted for DUI or driving while impaired must be processed for administrative separation, on top of being disciplined. Even if a service member is acquitted in civilian court, the military could still prosecute him or her under the UCMJ. The maximum punishment for Article 111 is dishonorable discharge, forfeiture of all pay and allowances and 18 months of confinement. If no one is injured, the maximum punishment is the same except the confinement period is lowered to six months.
What Navy personnel who have been arrested off base for DUI are required to tell commanders has become a controversial topic in the service. Last year, the military's highest court, the U.S. Court of Appeals for the Armed Forces, affirmed a lower court's ruling saying that a Navy self-reporting requirement for alcohol-related offenses under civilian authority violated the Fifth Amendment's prohibition against self-incrimination.
The case, U.S. v. Serianne, involved a Navy chief aviation electrician's mate who was charged with two specifications of drunken operation of a vehicle in violation of Article 111 and one specification of dereliction of duty in violation of Article 92. The latter charge stemmed from his failure to report his Feb. 2009 arrest, as required by OPNAVINST 5350.4C. However, the U.S. Navy-Marines Court of Criminal Appeals said - and CAAF agreed - this instruction was not regulatory but punitive and forced seamen to make self-incriminatory communications.
In response to the Serianne ruling, on July 21, 2010 the Secretary of the Navy issued ALNAV 049/10, which stated the Navy and Marines can create self-reporting requirements or instructions for service members who have been arrested by civilian authorities or who have had criminal charges filed against them in civilian jurisdictions. These regulations or instructions, however, must be regulatory or administrative in nature. Commanders can discipline service members who fail to adhere to any such self-reporting requirements. Commanders must however base the punishment on information "derived independently of a self-report."
Commanders can also discipline service members for the underlying offense.
These self-reporting requirements, coupled with the severe penalties civilian and military courts can impose, make it imperative for service members arrested off-site for DUI to contact a military law attorney.
Such a lawyer can challenge any evidence brought against them and assist in arguing extenuating circumstances such as the unforeseen impacts of authorized prescription drug use and moderate alcohol consumption that may have an effect on driving ability. To help secure a more lenient sentence, a lawyer could also raise mitigating factors, such as a lack of prior DUI offenses, and aggressively fight attempts to place records of a DUI in a service member's Official Military Personnel File so as not to permanently stain his or her military career.
Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyerfedattorney.com. The information in this column is not intended as legal advice.