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Ask the Lawyer: Pop positive? Remain silent and seek counsel

Apr. 14, 2011 - 02:46PM   |   Last Updated: Apr. 14, 2011 - 02:46PM  |  
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Lawyer Mathew B. Tully answers your questions.

Q: Do I have to explain anything if asked about a urinalysis that comes back hot?

Civilian police are required to inform individuals of their Miranda rights, including the right to remain silent, after making an arrest but before any interrogation.

Under Article 31 of the Uniform Code of Military Justice, service members have a similar right.

Military personnel acting in an official disciplinary or law enforcement capacity cannot interrogate or request statements from service members subject to the UCMJ if they are accused or suspected of an offense without first advising them that they do not have to make a statement.

If the service member is properly advised, any statements made afterward can be used as evidence in a court-martial.

The answer to a question asked before this advisement of rights cannot be used against them. But any spontaneous statements made by service members accused or suspected of an offense before receiving this warning may be used against them.

In addition, statements about an offense that are made by a service member to friends or co-workers without anyone trying to elicit information from him also can be used.

Since 2002, the Defense Department has vastly expanded its illicit-drug-use testing efforts. It has a 100 percent random drug testing goal for all active, reserve and National Guard members and civilians. However, the Army tests at twice that goal and the Marines and Navy test at three times that goal, according to DoD's Fiscal Year 2008 Drug Testing Statistical Report.

In 2008, 12,856 active-duty service members popped positive for drug use, a little less than 1.1 percent of the force.

Among the military's "high risk" demographic enlisted males from 18 to 25 years old the rate was 1.84 percent.

False positives or other procedural issues can possibly invalidate a urinalysis, especially if the specimen was mishandled. As such, service members whose urinalyses come back positive or who are concerned about random drug tests should contact a military law attorney.

To sum up: Service members questioned about a positive urinalysis are not required to make any statements to law enforcement or their military command; you should invoke your right to speak to counsel immediately.

Mathew B. Tully is an Iraq war veteran, National Guard officer and founding partner of the law firm">Tully Rinckey PLLC.">Click here to e-mail him. The information in this column is not intended as legal advice.

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