The other week I had another win at a Marine Separation Board. The Marines were trying to separate a young Corporal because his Urine Analysis (UA) tested positive for THC (marijuana).
There was nothing wrong with his UA sample, there was nothing wrong with the lab, nor was there anything wrong with the testing . . . there was no question that THC was in his system. So you might be asking how we could have walked away with a win in this scenario. Simple, not only was our client not guilty of wrongful use of marijuana, but although it was absolutely in his system, it got there by no fault of his own.
Under federal law, marijuana is still illegal; therefore, it is still a crime for Servicemembers to knowingly use marijuana. Although it is not illegal for a service member to be around a civilian while that civilian uses marijuana (I will leave the “think of your career” and “perception is reality” talk for a separate blog post) but as recreational marijuana becomes legal in more States, service members are more likely to find themselves in positions where civilians are using marijuana near or around that service member.
Being around marijuana while others are using it, can cause you to accidentally ingest some of it through secondhand exposure. If that happens, then THC can be found in your system. When someone does ingest some THC through secondhand exposure, that person is likely to not even feel any effects of the THC (meaning they will not even feel it or get high, but it is still in their system).
The DoD knows this and therefore allows for small amounts of THC to be in a service members urine and still pass a UA. This is called a “Confirmation Cutoff.” For THC, the Confirmation Cutoff is 15 nanograms per milliliter (ng/mL). So, if a service member has THC in their system, and it is under 15 ng/mL, that service member is considered to be a “Negative” for THC.
But just because a servicemember still has more than 15 ng/mL in their system does not mean they should be automatically separated from the military. What about those that are close to the cutoff? What about those who still did not knowingly/purposefully ingest THC but still tested above 15ng/mL? There is still a chance because after all, the ng/mL level does not prove that the person knowingly and purposefully ingested THC.
This is why it is so important to get qualified and trained legal counsel who can represent you in these situations. In this particular example, the servicemember tested positive for 22 ng/mL, and the only explanation was secondhand exposure from civilian roommates (living off-post). The military lawyer argued my client knowingly ingested THC because he chose to live with those roommates, and the THC was in his system. The government lawyer called the DoD testing facility to testify that secondhand exposure is not possible (side note: the DoD lab technicians usually will always testify that it is not possible, which is based on outdated studies).
I then called an expert witness, who was a professor and researcher qualified in the field of toxicology and pharmaceuticals, to testify that secondhand exposure is possible and explain the science and research behind that opinion. He also testified that, in his expert opinion, 22 ng/mL is so near the Cutoff level that secondhand exposure could be the cause of a positive UA.
In the end, the board voted that the government did not even prove that my client committed any misconduct, and my client was retained in the Marines.
This outcome was only possible because my client took the proactive steps to hire our firm, a civilian defense counsel. Had my client not hired a civilian defense attorney, he would only be represented by his detailed military defense counsel. Detailed military defense counsel does not have the resources to find civilian experts willing to testify on their client’s behalf, like the professor we had to testify for my client. Military defense counsel would have tried to cross-examine the government’s DoD lab expert, but would not have the freedom or resources to call their own expert to educate the board about all the facts and research.
That is why if you find yourself in a similar situation, please know it is not hopeless. Please know if you hire the right defense counsel, then there is a fighting chance.