Mathew B. Tully
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Ask the Lawyer: When is a urinalysis admissible?
Q. What happens if a superior officer asks me to take a urinalysis and I say no?
A. If an officer asks you to take a urinalysis, he or she may not have probable cause to make you take a drug test. Under Rule 315 of the Military Rules of Evidence, probable cause amounts to a reasonable belief that the evidence sought, such as drug metabolites, is in the service member's body. Information provided to the officer in writing or verbally can help the officer arrive to this reasonable belief.
Even if an officer has not been informed that a service member has taken an illegal substance, such as marijuana or cocaine, the officer may suspect such usage due to observations of the service member's behavior. In these instances the officer may ask the service member to voluntarily submit to a urinalysis, referred to as a consent search. What happens from here can get legally dicey, depending on how the request is made and how the service member responds.
Service members can decline to take a consent search. When they do, however, there is a good chance they will be required to submit to command-directed urinalysis.
If the service member voluntarily consents to the officer's request, then the urinalysis results can be used in criminal and administrative proceedings. With a command-directed urinalysis, the results can only be used in administrative proceedings, meaning the service member can be administratively separated, but the results cannot be used at court martial.
Office of the Chief of Naval Operations Instruction, or OPNAVINST, 5350.4D states that command representatives should inform the member of his or her right to decline to participate in a consent search. So long as the representative asks nothing more of service members, there is no requirement to inform them of their rights against self-incrimination. The obtainment of a written approval to a consent search is recommended, but not required.
The key to consent searches is their voluntariness. However, an officer can request service members to submit to urinalysis in a way that would lead them to believe they have no choice but to comply. As the U.S. Court of Appeals for the Armed Forces, or CAAF, noted in the 1996 case of U.S. v. Radvansky, threats of a command-directed search can make the evidence of a consent search inadmissible at court-martial, so long as the requesting party fails to inform the service member of the consequences of a command-directed search.
However, CAAF said the mere mention of a command-directed search does not automatically turn consent to a urinalysis "mere acquiescence to authority and not truly voluntary." For example, the Radvansky case involved an Air Force airman who was asked to submit to a urinalysis after his supervisor observed the airman had lost weight and was very stressed. After a first sergeant trainee asked the airman to submit to a urinalysis, the airman asked what would happen if he declined and was told a command-directed urinalysis might be pursued. Although the airman signed the urinalysis consent form, he claimed he believed he had no choice but to take the test. However, the CAAF did not see the airman's submission as involuntary and therefore didn't suppress the urinalysis evidence.
Service members concerned about a urinalysis should immediately consult with a military law attorney. Depending on the circumstances, a lawyer could show that the service member's consent was not voluntary.
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.