UCMJ and Drugs

Alert:

The military drug analysis uses a three part test, two screens and a confirmation. Overall it works well. One of many reasons for the multiple testings is to avoid the possibility of false positives. False positives were relatively frequent with the early drug testing programs. So, it has become a shibbolith of prosecutors and commands that you can never test "positive" from over the counter medications. Well, that may well be true. But, this warning from the Food & Drug Administration should send shivers.

The Food and Drug Administration is warning patients about a potential mix-up between powerful prescription pain drugs and common over-the-counter medications like Excedrin and Gas-X made at a Novartis manufacturing plant.

The problem is a result of major manufacturing problems at a Lincoln, Nebraska, facility which was shut down last month. The Swiss drugmaker has recalled bottles of Excedrin, Bufferin and other medications which may have included mixed up pills.

Now the FDA says some of those over-the-counter pills may have accidentally been packaged with powerful prescription painkillers made at the same facility. The opioid drugs are sold by Endo Pharmaceuticals as Percocet, Endocet, Opana and Zydone.

h/t MSNBC.

A recall of the affected products covers:

The recall is for bottled packages of Excedrin and NoDoz with expiration dates of Dec. 20, 2014, or earlier, and for Bufferin and Gas-X Prevention products with expiration dates of Dec. 20, 2013, or earlier.

Here is a link to Norvatis for more information.

Here is policy by the Army for those who have properly prescribed medications.

Military.com reports: Soldiers who take their prescription medications six months after dispensation and pop positive on a urinalysis test could see their careers go down the toilet. Changes made to Army Medical Command regulation 40-51, issued by the surgeon general via an All Army Activities message Feb. 23, announced that controlled substances could only be used up to six months from the prescription issuance date. This announcement may seem minor, but .. . . All it would take is a positive urinalysis test.

Here is a current "status" on Spice and testing courtesy of Air Force Times. (Updated 12 March 2011)

Here is a link to the Federal Register.

[UPDATES 3 March 2011:]

1. The USAF has begun testing for some of the synthetic Spice - that was an initial story. However, Trent Tritten of Stars & Stripes reports that:

The Air Force has begun limited testing of urine samples for the designer drug Spice but still does not have the ability to randomly test all airmen, the service said Friday. Testing for synthetic forms of marijuana is for now only being used in cases involving criminal investigations, and only 12 samples have been taken for testing so far, the Air Force press desk at the Pentagon told Stars and Stripes.

There is an update on this from the Air Force Times.

2. As of 1 March 2011: The Administrator of the Drug Enforcement Administration (DEA) is issuing this final order to temporarily place five synthetic cannabinoids into the Controlled Substances Act (CSA) pursuant to the temporary scheduling provisions. The substances are 1-pentyl-3-(1-naphthoyl)indole (JWH-018), 1-butyl-3-(1-naphthoyl)indole (JWH-073), 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200), 5-(1,1-dimethylheptyl)-2-[(1 R, 3 S)-3-hydroxycyclohexyl]-phenol (CP-47,497), and 5-(1,1-dimethyloctyl)-2-[(1 R, 3 S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue). This action is based on a finding by the Administrator that the placement of these synthetic cannabinoids into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety. As a result of this order, the full effect of the CSA and its implementing regulations including criminal, civil and administrative penalties, sanctions and regulatory controls of Schedule I substances will be imposed on the manufacture, distribution, possession, importation, and exportation of these synthetic cannabinoids. [http://goo.gl/KXhHK]

The issue of Spice (a street name for Salvia) and similar herbal substances has become a hot topic within the military. Common names for Spice include Genie, K2, Skunk, Spice Diamond, Spice Gold, Spice Silver, Yucatan Fire and Zohai. This is because the military is now prohibiting use of Spice or similar substances (although the similar substance of alcohol and coffee remains legal). Not too long ago Spice was used as the name for Salvia Divornum. Salvia is a herbal substance that is currently legal in the U.S. to possess and use. However, as with all substances others have been more creative and now it is common to find that Spice is really a synthetic of marijuana. One civilian testing laboratory has this description:

Spice is slang for synthetic cannabis. It was once an actual brand but has become shorthand for a wide variety of similar products. It's a mixture of herbs that have had synthetic cannabinoids sprayed on them. One of these cannabinoids is called JWH-018 and was invented in a lab to help with pain. The point of experimenting with cannabinoids was to eliminate the effects of cannabinoids that create a "high" while maintaining the pain relief effects. With JWH-018, this did not happen - actually JWH-018 is very potent, more potent than many forms of marijuana.

See, HomeHealthTesting.

Add MedTox to those offering "home" testing.

Illegal drug use is generally prosecuted under UCMJ Article 112a. Most Air Force cases go to court-martial. Many marijuana use cases go to UCMJ Article 15 and administrative separation in the other services. Possession in large amounts, lots of different drugs, and sales or distribution will likely lead to a court-martial.

There is a fairly standard approach to defending drug cases which are based purely on a positive urinalysis result. I recommend several things if you believe you might or have tested positive.

1. Immediately get a civilian drug test. You do not have to tell your command you are doing this and you shouldn't. It is imperative you do this immediately because of the short time span drugs typically remain in the system. I recommend both a urinalysis and a hair test.

a. In one case I had a senior enlisted female client where we had a DNA test done (it's about $1500.00) so not cheap. But in this client's case the sample showed only male DNA. Interestingly, and contrary to testimony in hundreds of cases, the military drug lab tried to say that the sample must have been contaminated at the lab, but that it was really the clients. But again, there was no female DNA present at all. We combined this test with the poor security procedures in the unit for storage of collected samples waiting to be shipped to the military lab for testing.

b. In another case we were able to get hair testing done and along with witnesses were able to establish the positive "marijuana" result was due to hemp seed oils in health foods.

c. Spice, or synthetic marijuana and some of the other adulterates can now be tested for. HomeHealthTesting now has a $55.00 test available for certain of the synthetic spices. This is not meant to be an endorsement of their product, merely an example of what's out there.

d. I have successfully used Serological Research Institute in various cases for all types of DNA testing and case evaluation.

e. I have also successfully used Rocky Mountain Instrumental Laboratories for drug testing in the past, as well as most recently Quest Diagnostics and Omega Labs.

In addition to the typical drug cases (marijuana, cocaine, ecstasy), the military is cracking down on Spice. The term "spice" isn't limited to the original name of salvia divornum, but now includes other lab created forms.

Here is a new development in the military war against "spice." The Navy Times reports that:

Ten Hampton Roads-area retailers have been placed off limits because they sell or have sold designer drugs collectively known as "spice." The Thursday announcement, from the commander of Navy Region Mid-Atlantic, Rear Adm. Mark Boensel, is effective immediately.

The military is allowed to place establishments and businesses off-limits to military personnel. This happens most frequently with bars and businesses that discriminate. There is a process that the military must go through to give the relevant business due process and an opportunity to contest the barment. Once that is done, violation of the order becomes a violation of UCMJ, Article 92, as a general orders violation.

Here is a report from Marine Corps Times:

High-level military officials are sounding the alarm about the dangers of synthetic marijuana that is sold legally as "spice."

In October 2010, the Army Times reported the following:

The Army has launched a crackdown on the drug spice at least nine commands in response to a spike in usage among soldiers.

What's more, spice is undetectable by most urinalyses.

The Army is also keeping a watchful eye on another noncontrolled substance called salvia, which is a hallucinogen.

Spice has been outlawed in 13 states, including Georgia, Kentucky, Tennessee and, as of July, Hawaii, according to the National Conference on State Legislatures. Several variants of spice are illegal in Germany and some other European nations.

Army Times reports:

All Spc. Bryan Roudebush wanted was a legal high. Trying to get some relaxation, he sat on a balcony in Waikiki, Hawaii, and took five hits off a small pipe packed with a drug called spice. He stepped back inside, dozed off on the couch beside his girlfriend Ola Peyton, and then - as if in a trance - he beat Peyton senseless and nearly pushed her off the 11th floor balcony.

• Air Force - Air Force Instruction 44-121
• Army - Army Regulation 600-85
• Navy-Marines - SECNAVINST 5300.28D.

Since virtually no synthetic cannabinoids are listed as controlled substances under the Controlled Substances Act, the possession or use of these substances cannot be charged as a violation under Article 112a, UCMJ;19 however, use of any of these substances "for the purpose of inducing excitement, intoxication, or stupefaction of the central nervous system is prohibited" by Army Regulation 600-85.

Major Andrew Flor, "Spice - I Want a New Drug," ARMY LAWYER, July 2010, 23, 24.

Navy and Marine Corps cases will be dealt with under SECNAVINST 5300.28D, MILITARY SUBSTANCE ABUSE PREVENTION AND CONTROL para. 5.c (5 Dec. 2005).

On 19 June 2010, the Air Force Times announced:

The Air Force has banned two loosely regulated, mind-altering drugs - and anything "that is inhaled, injected, consumed, or introduced into the body in any manner to alter mood or function" other than alcohol or tobacco.

Lt. Gen. Charles Green, the Air Force surgeon general, signed a memo June 9 that revised Air Force Instruction 44-121, which deals with alcohol and drug abuse. Any use of the forbidden substances is a violation of Article 92 of the Uniform Code of Military Justice, a charge of failure to obey an order or regulation.

The instruction also applies to inhalants, propellants, solvents, household chemicals and other substances used for huffing. The service also banned use of prescription or over-the-counter medicine "in a manner contrary to their intended medical purpose or in excess of the prescribed dosage."

The new memo is largely in response to the use of two designer drugs: Salvia divinorum, an herb native to Mexico and sold as "Sally D" or "Magic Mint," and Spice, manufactured in Europe and sold as incense. Both are listed as "drugs of concern" on the Drug Enforcement Administration's website, but possessing or using either isn't a federal crime, though some states have banned or restricted its possession.

On the civilian side of the house: Major Andrew Flor, "Spice - I Want a New Drug," ARMY LAWYER, July 2010, at page 23.

Spice and most synthetic cannabinoid substances are currently legal in the United States, with the exceptions of Kansas and Kentucky; laws to ban synthetic cannabinoid substances are currently pending in Alabama, Florida,Georgia, Illinois, Louisiana, Missouri, New York,Tennessee, and Utah.

However, none of this prevents the military prosecuting personnel under UCMJ Article 92 for an orders violation, or possibly under UCMJ Article 134 for conduct prejudicial to good order and discipline.

TESTING: Major Flor the author of the article above has this to say about the present status of the military capability to test for Spice.

This note refers to all synthetic cannabinoid herbal incense products as "Spice." Any attempt to list all Spice products is probably futile. The market moves quickly to evade detection by law enforcement. See Navy Alcohol and Drug Abuse Prevention (NADAP), Herbal Incense an Awareness Presentation, Nov. 17, 2009. However, European countries are reported to have detection capabilities via blood tests.

As indicated above, a number of tests have been developed to test for the synthetic forms of spice since Major Flor wrote his article.

1. United States v. Larry. A panel of members with enlisted representation sitting as a special court-martial convicted the appellant, contrary to his pleas, of conspiracy to violate a lawful general order, violation of a lawful general order, making a false official statement, wrongful possession of "Spice" with intent to distribute, and solicitation of another to distribute "Spice," in violation of Articles 81, 92, 107, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, 907, and 934. The members sentenced the appellant to six months confinement and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

2. United States v. Parrotte. Consistent with the appellant's pleas, a military judge sitting as a general court-martial convicted him of one charge and one specification of violating a lawful general order by possessing Salvia Divinorum 1 while on base, in violation of UCMJ Article 92, 10 U.S.C. §892; one charge and one specification of operating a vehicle while impaired by marijuana and oxycodone, in violation of Article 111, UCMJ, 10 U.S.C. § 911; one charge and one specification each of possession of marijuana, divers wrongful uses of marijuana, divers wrongful introduction of marijuana onto a military installation, wrongful introduction of oxycodone onto a military installation, and wrongful use of oxycodone, all in violation of Article 112a, UCMJ, 10 U.S.C. § 912a; one charge and one specification of larceny in violation of Article 121, UCMJ, 10 U.S.C. § 921; and one charge and one specification of divers wrongful uses of Dextromethorphan Hydrobromide and Chlorpheniramine Maleate, sold commercially as "Coricidin Cough and Cold" (CCC), with the intent to become intoxicated, in violation of UCMJ Article 134, 10 U.S.C. § 934. A panel of officers sentenced the appellant to a bad-conduct discharge, confinement for twelve months, forfeiture of all pay and allowances for twelve months, and reduction to E-1. The convening authority approved the sentence as adjudged.

Here is a report from FindLaw Blotter blog about how someone might end up in trouble without realizing it.

Walking down the drink aisle of the supermarket can be a daunting experience as the number of options seem to increase every day. One drink you won't see on the shelf ... Purple Drank (no, that is not a typo) also known as Sizzurp, among other names.

Sizzurp, which is actually a form of codeine cough syrup, is all over the news these days. Rapper T.I. was believed to be sipping on the substance when he got pulled over this week, football player JaMarcus Russell was quenching his thirst with the concoction when he was arrested over fourth of July weekend - the drink has about as many celebrity fans as it does names. One problem through, Sizzurp is illegal. The drink is essentially a cough syrup cocktail, and the powerful ingredients contained in codeine are considered a controlled substance.

A few years ago I had a case where the military laboratory expert testified that the client drinking a combination of Rokstr and vodka could cause him to exhibit similar behavior to someone using cocaine. That case, United States v. Blazier, is still on appeal and has reached the Court of Appeals for the Armed Forces. You should also be aware that some states are now attempting to ban or regulate certain energy drinks that also contain alcohol because the drinks are dangerous.

Each service has a substance abuse program. Be careful. In order to enter the program, such as the Army substance abuse program with disciplinary consequences you have to turn yourself in to the right person. Call for a consultation on that. Also, be aware that what you say to the program personnel is not always kept confidential from the command.

Call for a consultation with an experienced military lawyer if you are suspected, being investigated, or disciplined for illegal drug use.