Can you face judicial action and be court martialed if you refuse to take routine daily breathalyzer test in the morning? Doesn't this abridge your 4th amendment under Article-92 )section 1,iii,c)?
Thanks for the chance to help. I am an attorney with over 12 years military law experience.Context would help...who has ordered the testing and why?
Received a counseling statement from my commander stating that I must report to ASAP at 0800 every morning to conduct a breathalyzer test.
Every morning for how long?And what prompted this?
Until released from involuntary treatment at ASAP. The ASAP counselor said that he can not say that I am a substance abuser based of off one incident and did not recommend being enrolled in the program. This derived from an old alcohol related incident. The counseling statement doesn't give an end date, only states that I will report every morning during the work week escorted by an E-6 and conduct a breathalyzer.
ThanksThat is a tough one...that is, it is not "clearly illegal"...but it sure seems borderline. That is, an order running with no end to submit to testing with out probable cause? That may well be an illegal order.Lets back up...Under military law, an order is presumed valid. But to be valid the order must not be otherwise illegal (like, an order to "kill the prisoners" would be patently illegal) and must relate to a military function. So an order to wash the battalion vehicle would be legal. An order to wash the battalion commander's wife's car would not be legal.What you describe? I can see a "military function"...that is, I can see a reason to have you tested. If there is evidence you are abusing alcohol, even remote evidence, that would be a reason to test for use.But the potential problem is the continuing nature of this order...it seems like a "search" for evidence...not necessarily based on probable cause. So it seems like this may not be a valid order.But you disobey at your risk...if you disobey and they prosecute, you will need to go to the judge and ask the judge to rule that the order was invalid. Or if you disobey and they bypass the courts and go straight to administrative separation? Then you are left to argue to the separation authority that the order was not valid.So...to answer the question, is the order valid? It sounds like it is not...but were I in your shoes, I am not sure I would challenge it.
Retired Marine Corps Lawyer, Veterans Services Officer (VSO)
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