Washington, DC asked in Military Law for Washington

Q: Field grade article 15 for positive UA of THC, doesn't smoke but have been around in-laws that are heavy smokers

What advice do you have for me. I'm stationed in a state that is legal for marijuana to purchased and utilized as long as you have a medical card for it. I don't know how else you can prove that I'm innocent of this type of conduct without bringing my husband's relatives in it. I have never had a positive UA until now.

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2 Lawyer Answers

Jared Hawkins

Answered
  • Walla Walla, WA
  • Licensed in Washington

A: You should consult with your local military defense counsel. Under military law there is a presumption that if the substance is found in your sample you knowingly took it into your body. So your best chances of fighting this are by providing an explanation (i.e., someone gave it to you but you didn't know what it was (as long as that's true)), showing that the sample tested wasn't yours (if that's true), or by showing that the chain of custody wasn't followed. These are all very difficult to do through a non-judicial proceeding.

Philip D. Cave

PREMIUM
Answered
  • Military Law Lawyer
  • Alexandria, VA

A: The issue of testing positive due to being around those who smoke marijuana has been studied extensively. There is no credible research to support the idea that a person can test positive from being around family members who smoke marijuana. This has been tried and litigated in courts-martial over the years without success.

The best approach is to do what we all do with these cases. Review the lab results and tests in great detail, preferably with the help of a forensic toxicologist. They will help you identify possible testing errors. I had one some years ago where the client was a woman, but the sample had male DNA in it - a case of contamination. In others, we have found contamination at the time of collection and storage.

Difficult cases to challenge.

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