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PhilCave
PhilCave, Lawyer
Category: Military Law
Satisfied Customers: 1064
Experience:  33 years military law experience.
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I am in the Army and tested positive for THC. I am not sure

Customer Question

I am in the Army and tested positive for THC. I am not sure of the level, but after doing research, I realize that I have taken many medications and eaten many foods that contain Vitamin B2 which can cause a false positive. If I can provide evidence of this usage, can I prove myself innocent? Have there been cases of false positives in the past or present? What are my options?
Submitted: 5 years ago.
Category: Military Law
Expert:  PhilCave replied 5 years ago.
Certain products can cause false positives on drug tests.
However, that is in the immunoassay test. Military drug labs run two IA tests. If the sample is above the cut-off (15) on each of those tests, then the sample is sent for GC/MS testing. This test can distinguish between THC and other products that can sometimes give a false positive on the IA.

It is also highly unlikely any of your medications will be positive for THC.

You will have to talk with the Trial Defense Service lawyers and discuss the way in which your sample was collected and if proper procedures were followed, was there a possiblity of contamination, was your test done properly at the lab, is there an innocent explanation for why you tested positive.

I would expect you'll be offered an Article 15, and then possibly administratively discharged.

Sincerely.
Customer: replied 5 years ago.
I asked these questions because of the research that I did. What can I do if I know without a doubt that I have never smoked marijuana? I have never touched it a day in my life...this upsets me becuase I know that I am innocent, but I do not know what I can do to prove this. I do not know what the CID investigation consists of, and I do know that when the urinalysis was conducted, the observer was not watching me as I provided my sample. Is it possible for there to be a mixup with the samples, and if so, what can be done to prove this? Can I ask for another urinalysis, and do they have to give me another one? What can be an "innocent explaniton of testing positive?" If I were in a night club in which other patrons were smoking marijuana, could this cause it? I'm just lost and confused because I know that I have never smoked marijuana!
Expert:  PhilCave replied 5 years ago.
The first to understand is that your are fighting uphill. The militiary has been convinced that the drug test program is perfect.

You have to find a substantial or significant error in the collection procedures. The fact the observer didn't watch you is interesting, but the Members (jury) at a trial would question why that matters because why would you be contaminating your own sample.

Don't talk to CID, they can't and won't help you. Save any statement for later. Exercise your Article 31 right to silence and ask for a lawyer.

The process is intended to avoid mix ups. That's why they should have a procedure where they are only dealing with one person and sample at a time to avoid putting the wrong label on the wrong bottle.

If the samples have leaked on their way to the lab the lab will not test any of the samples.

Your ingestion by being around marijuana while it was smoked will not work. That issue has been thoroughly researched and it would be impossible to have a positive marijuana by passive inhalation in a bar.

Somebody tried to get you? Somebody tampered with a drink?

The Brownie defense does not usually work. People are very sceptical.

In the cases I have one I was able to show - by DNA testing - that my clients sample was swapped, in another case the nanogram level was low and the Members believed that there was some drink tampering.

You can ask for another urinalysis. I'm surprised they haven't already asked for one.

Sincerely.
Customer: replied 5 years ago.
On my DA 4856 it says THC-24...is that how much my sample was tested for? My command told me that I had togo and talk to CID when they call. So I shouldn't speak to them? If someone tampered with my drink, how do I prove that? I feel like my hands are tied and I'm as innocent as innocent can be! If I do another sample, and it comes back negative, what happens then?
Expert:  PhilCave replied 5 years ago.
DO NOT TALK TO CID.
You must go there. But you should also exercise your right to silence and ask for a lawyer. This is critical. This is where many people in drug cases get themselves into a problem. They start talking to CID before they've talked to a defense attorney.

24 would be considered fairly low.

If you get another sample that is negative it is unlikely to mean anything.

Askt them to do a hair test. Make sure they take underarm/leg hair. This may help you, although there's no guarantee that a negative hair test will be accepted in your favor, its worth the try. You can actually get your own if you find a lab in the area that does such testing for local employees.

Unless someone admits it or was a witness you will not have much luck "proving" someone tampered with a drink or some food.

Are you a body-builder? Do you use products from GNC or any other health food store?

Sincerely.
Customer: replied 5 years ago.
So if they test me again and it comes back negative, it will not override the initial test? If not what would be the point in doing it?
Expert:  PhilCave replied 5 years ago.
That's correct they will not drop the case just because a second test was negative. They will argue that all that means is you are a one time user. The value is to show you are not a regular user of marijuana, and usually that's the benefit to the hair test. The hair test is considered to be more accurate and of course can go back 90-120 days depending on the length of the hair (which is why underarm or leg hair is best compared to head hair on a Soldier).
SIncerely.
Customer: replied 5 years ago.
So with providing hair follicles and shwoing that I am a good person whom has never been in trouble or had any other instances such as this I should be ok?

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