PREPARING A URINALYSIS CASE

PART I: INITIAL QUESTIONS

A. Focus on the Test (who what where when why how)

1. When?

a. When was the urinalysis ordered?

b. When was the urinalysis conducted?
c. When did the specimens go from the unit to the IBCP?
d. When did the specimens leave the IBCP for the lab?
e. When did the results return from the lab?

2. Why?

a. Why was the urinalysis conducted?

1. Unit Urinalysis (Inspection)
i. What percentage tested?
ii. Regularly scheduled?
iii. In response to a report of drugs?
2. ADAPC Referral / Screening
3. Fitness for duty
4. Probable cause search
5. Medical screening
6. Law enforcement apprehension

3. What?

a. What substance did client test positive for?

b. What level?
c. What possible legal drugs may account for positive result? If client is taking
any prescription medications, seek screening by a Medical Review Officer.

4. How?

a. How was the test conducted? Appendix A (AR 600-85, Appendix E)

Appendix B (Ft. Bliss Biochemical Testing Lab SOP)

1. Method of choosing UDAC / Observers

2. How are soldiers chosen for the test

i. Random procedures using SSN
ii. Commander determined persons to be tested

3. Client’s attendance record

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 4. How were the sample’s collected
i. Direct observation
ii. Outer garments removed
iii. Hands washed in presence of UDAC
iv. Suspicious bulges investigated, documented?
v. Does the donor open / close the specimen bottle?

5. Did UDAC maintain proper unit urinalysis ledger?

6. Did UDAC / IBTC maintain proper specimen custody document?
7. How were discrepancies handled?
i. Persons unable to give full sample (60ml)
ii. Possible contamination (spills, suspicious conduct)
iii. Persons leaving the testing site?

b. How long did the test last?

1. For long tests – were there discrepancies?
i. Persons unable to give full sample
ii. Possible contamination (spills, suspicious conduct)
iii. Persons leaving the testing site?

2. Was the test continued for those who were not present?

c. How were discrepancies handled?

1. Are improper or suspect samples crushed and lined out on DD-2624?
2. Were new samples done if contamination was suspected? While drug
lab SOP requires that improperly sealed samples be destroyed,
AR 600-85 and some installation SOPs do not. Possibly
contaminated sample may be re-sealed and shipped. Check
posts and unit SOP and question UDAC and IBTC thoroughly
on their procedure for dealing with poorly sealed or improperly
labeled specimen containers.

3. Are MFRs done where discrepancies were noted?

4. How are persons who didn’t take the test dealt with?
5. Are those who are not able to give a sample allowed to leave?

5. Where?

a. Where was the urinalysis conducted, and under what conditions?

1. Was the site a controlled one (in accordance with SOP)?
2. Cleanliness of the site

b. Where are specimen containers stored?

1. Before test
2. After test

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 6. Who?

a. Who conducted the testing? Who’s the UDAC?

b. Who has access to the samples and specimen bottles?
c. Who else tested positive?

B. Focus on the Client

1. Rank, Position, age, time in service, moral or religious beliefs, family

2. History of conduct
a. Is client in ADAPC program?
b. Does client have prior disciplinary action?
c. Client’s attitude towards drugs?

3. Explanation of client
a. Whereabouts near time of ingestion
b. Suspect persons
c. Physical effects detected, if any

4. Character of witnesses

PART II: THE LITIGATION PACKET

A. Significance of Lab report.

- must have expert explain scientific-test evidence, US v. Hunt, 33 MJ 345

- Test must be reliable, certified by DoD and conducted by DoD certified lab
- test reliably detected the presence of drug metabolites
- test shows metabolite in body that can only be produced by drug
- Must show Knowing or Wrongful use, US v. Campbell, 50 MJ 154
- Lab test reliably quantified the concentration of metabolites
- DoD cutoff level is greater than the margin of error and sufficiently high to reasonably
exclude the possibility of a false positive and establish the wrongfulness of any
use. - Show that test had taken into account what is necessary to eliminate the
reasonable possibility of unknowing ingestion or a false positive.
- reasonable likelihood that at some point a person would have experienced the physical
psychological effects of the drug.

B. Understanding Urinalysis Testing Procedures

I. General Discovery Material. Litigation Packet

1. Specimen Custody Document

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2. Summarized Lab Results

- DA cut off levels for screening tests

DRUG ng/ml

Marijuana (THC).......................................50
Cocaine (BZE)...........................................150
Amphetamines...........................................500
Barbiturates................................................200
Opiates.......................................................2000
Phencyclidine(PCP)...................................25
Lysergic Acid Diethylamide(LSD)............0.5

- DA cut off levels for GC/MS test:

DRUG ng/ml

Marijuana (THC).......................................15
Cocaine (BZE)...........................................100
Amphetamines...........................................500
Barbiturates................................................200
Opiates
Morphine.......................................4000
Codeine..........................................2000
6-MAM (Heroin)............................10
Phencyclidine(PCP).....................................25
Lysergic Acid Diethylamide(LSD)..............0.2

3. Drug Detection Times. Time periods which drugs and drug metabolites remain in the
body at levels sufficient to detect are listed below.

Drug Approximate Retention Time

Marihuana (THC)(Half-life 36 hrs)

Acute dosage (1-2 joints)...................................2-3 days
Eaten Marihuana................................................1-5 days
Moderate smoker (4 x wk)..................................5 days
Heavy smoker (daily)..........................................10 days
Chronic smoker....................................................14-20 days (maybe longer)

Drug Approximate Retention Time

Cocaine (BZE)(Half-life 4 hrs)................................2-4 days

Amphetamines..........................................................1-2 days

Barbiturates
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 Short acting (secobarbital)...................................1 day
Long acting (phenobarbital).................................2-3 weeks

Opiates.........................................................................2 days

Phencyclidine(PCP).....................................................14 days
Chronic user:...........................................................up to 30 days

Lysergic Acid Diethylamide(LSD)................................8-30 hrs.

4. Initial Screening Data - usually test 5 of 7 drugs

5. Radioimmunoasa (RIA)

6. Screening Tests (KIMS)

a. Initial Screening Test - Kinetic Interaction of Microparticles in Solution

(KIMS).

b. KIMS does not give a nanograms per milliliter count, only an index value
showing sample is positive/negative for drug
metabolites

c. Purpose is to eliminate majority of negative specimens

d. Test based on immunological principals, similar to the way an animal creates

antibodies for a specific virus. Test utilizes animal antibodies to
attach to any antigens present in a sample. The test then measures the transmission
of light through sample (more light, more positive). Every positive screened twice.

e. Open Quality Control Samples vs. Blind Quality Control Samples

f. Verification Screening Tests

7. Confirmation Test (GM/MS)

a. Gas Chromatography/Mass Spectrometry - "Gold Standard" of forensic

toxicology

b. Solvent blank

c. Extracted Standard/Internal Standard

d. Low Quality Control Standard

e. Blind Quality Control

f. Blank Specimen
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 e. Concentration level

8. Extracts from Sample Litigation Packet. Appendix C.

Medical Review Officer Manual for Federal Workplace Drug Testing Programs. Appendix D. Explains
each drug, physical symptoms caused by drug, where the drug is derived from, how it can become
addictive, and withdrawal symptoms. Also lists legal forms of drug.

List of Prescription and Nonprescription drugs that could affect a Drug Test:

A. Amphetamines and Methamphetamines

The following prescription medications contain d-amphetamine or racemic d, l-amphetamine (i.e., equal
amounts of d- and l-amphetamines:
Adderall
Benzedrine
Biphetamine
Dexedrine
Durophet
Obetrol
The following prescription medication contains d-methamphetamine;
Desoxyn
The following substances are known to metabolize to methamphetamine and amphetamine:
Benzhphtamine
Dimethylamphetamine
Famprofazone
Fencamine
Furfenorex
Selegiline
The following substances are known to metabolize to amphetamine:
Amphetaminil
Clobenzorex
Fenethylline
Fenproporex
Mefenorex
Mesocarb
Prenylamine

Vicks Inhaler- contains l-methamphetamine, can cause positive in some labs, must request laboratory to
perform a d-, l- isomer differentiation.

B. Cocaine

- There are no prescription medications that contain cocaine.

- used as anesthetic during some medical and dental procedures. Extremely rare in the United
States.
- passive inhalation of Cocaine will not produce urine positive of cocaine using established cutoff
levels. Comprehensive study conducted at NIDA's Addiction Research Center (E.J. cone, D.
Housenfejad, M.J. Hillsgrove, B. Holicky, and W.D. Darwin. Passive Inhalation of
Cocaine. J.Anal.Toxicol. 19:399-411(1995)).

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 - "Health Inca Tea" - outside of U.S., this Tea contains decocanized coca leaves with detectable
amounts of cocaine. Not sold in US, if so, should not contain any residual cocaine.

C. Marijuana, THC

- Marinol - used for stimulating appetite, preventing weight loss, preventing nausea and vomiting
- Hemp products

D. Opiates: Heroine, morphine, codeine. MRO must verify "clinical evidence of illegal use" before
verifying sample is "POSITIVE."

The following prescription medications contain morphine

- Astramorph PF
- Duramorph
- MSIR
- MS Contin Tablets
- Roxanol

The following prescription medications contain codeine:

- Actifed with Codeine cough Syrup
- Codimal PH Syrup
- Dimetane-DC Cough Syrup
- Emprin with Codeine
- Fiorinal with Codeine
- Phenaphen with Codeine
- Robitussin A-C
- Triaminic Expectorant with Codeine
- Tussar-2
- Tylenol with codeine

The following nonprescription products contain opium (i.e., morphine)

- Amogel PG
- Diabismul
- Donnagel-PG
- Infantol Pink
- Kaodene with Paregoric
- Paregoric
- Quiagel PG
The following non prescription product contains codeine:
- Kaodene with Codeine

PART III: PREPARING FOR TRIAL

A. Discovery
1. Lab procedures

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2. SOP’s (Find them and note discrepancies)

a. ADACP (AR 600-85)

1. UADC qualification
i. Check the Appointment Order
ii. Criminal records check
iii. In ADAPC program?
iv. Read installation / unit SOP?

2. Observer qualifications
i. Rank (E-5)
ii. Cannot be in ADAPC program
iii. Direct observation, one at a time
iv. Same sex
v. Latex gloves (both hands)

b. POST (Biochemical Testing Point)

1. Conditions / deficiencies
2. Records of disciplinary actions
3. Policies for storage

c. Unit – Your post SOP may require that the unit has one. Does it? If it does,
what does it require? Is it followed? What’s the unit climate? Discovery of
reports of drugs in unit may be needed.

3. Chain of custody (Check all persons, not just those listed on custody document)
a. Are all persons authorized?
b. Are all persons qualified?
c. Check all allied documents

4. Greystone reports

5. Lab problems
a. Were samples maintained? Laboratory regulation requiring retention of
positive sample conferred substantive right upon accused. Failure to maintain
sample resulted in conviction being set aside. US v Manuel, 43 M.J. 282
(C.M.A. 1995).
b. Were deficiencies at the lab noted in recently? What’s the nature of the
deficiency? Have the deficiencies been corrected?

6. Motions
a. Compel discovery
b. Trip to lab
c. Second urinalysis – retest of positive sample for raw cocaine US v Mosley, 42
M.J. 300 (C.M.A. 1995), is a better tactic than attempting to enter a later
negative urinalysis, which is generally inadmissible US v Johnston, 41 M.J.
(C.M.A. 1994).
d. Provide expert
1. Expert testimony generally required at court-martial. Results of drug
test alone is insufficient. U.S. v Murphy, 23 M.J. 310 (C.M.A. 1987).

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 2. Stick to defense position of requesting defense expert to support
defense theory.
3. Government expert may sit in courtroom while another government
expert testifies about lab testing procedures. US v Gordon, 27 M.J.
331 (C.M.A. 1989).
e. Disciplinary / ADAPC Records of Persons in Chain of Custody
1. UADC qualification
i. Check the Appointment order
ii. Criminal records check
iii. Ever enrolled in ADAPC program?
2. Observer qualifications
i. Rank (E-5)
ii. Cannot be in ADAPC program
iii. Direct observation, one at a time
iv. Same sex
v. Latex gloves (both hands) / changed regularly?

B. Interviews

1. The UADC + Observers

2. Others at the test site (don’t forget to check their observations of your client)

C. Investigation

1. Review the conditions at the test site

2. Trace the timeline, access, and the chain of custody
3. Articles
4. Compare observations to nanogram levels
5. Check your client’s character & reputation at the unit

D. Defenses (Merits or Motions)

1. Merits
a. Contamination -
i. Prior to test - were bottles stored properly and sealed in plastic bag
- who had access to bottles immediately prior to test
- did accused touch $ or other objects, did he wash his hands?
ii - During test - conditions of UDAC table and immediate area, bathroom,
- training of observers, any prior misconduct of observers
- Who touched bottle top, where was top kept during test?
- Did observer wear gloves, how often did they change them
- Is seal put on and intact throughout COC
- Does signature and SS# match, look at bottle for running ink

iii - During storage - transport - how long before bottles were transported, where
and who stored them, who had access to keys.
- Check with UDAC on procedures for deficiencies noted
iv. At the lab - ask for any and all disciplinary records for anyone in chain of
custody.
- was chain of custody properly annotated
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 b. Character evidence pertinent to drug cases:
- Law-abidingness and Good Soldier: only opinion/reputation, not specific acts
- Drug use against religious beliefs: Only opinion/reputation. US v. Brown, 41 MJ
1(CMA 1994)
- Against Drug use and abusers: Only opinion/reputation. US v. Robertson, 39 MJ 211
(CMA 1994)
- Never used drugs, See US v. Trimper, 28 MJ 460 (CMA 1989)
- Trusting or gullible person. US v. Elliott, 23 MJ 1 (CMA 1986)

c. Hemp products- Appendix E.

2. Motions
a. Illegal search – Evidence from unlawful searches and seizures not based upon
probable cause is inadmissible pursuant to M.R.E. 311. Defense motion to suppress
shifts burden to government to prove by preponderance of the evidence that inspection
was valid. Test to determine unit fitness / readiness versus test to determine individual
fitness is the purpose and scope of the urinalysis.

1. Purpose –
i. Where primary purpose is to determine unit fitness and readiness
commanders may conduct urinalysis tests even upon reports of
drugs in unit. Key is commander’s stated purpose and the whether
inspection is even-handed (not directed more at one individual or
group than others) US v Jackson, 48 M.J. 292 (CAAF 1998).
ii. Commanders may test based upon recent reports or rumors of drugs
within the unit or clients peer group where the purpose is to end
“finger-pointing” and uplift morale. US v Shover, 45 M.J. 119
(CAAF 1996).
iii. Good faith on part of commander may cure suspect motives of
subordinates. US v Taylor, 41 M.J. 168 (C.M.A. 1994).

2. Scope
i. How many people tested?
ii. Which persons were not tested?
iii. Commander’s drug testing policies are a major issue. A flawed
program may still be considered valid if no individual is targeted
and random procedures are followed. Us v Beckett 49 M.J. 354
(1998).
iv. Check pre and post testing records for consistency in scope of
testing.
v. Commander’s drug testing policies are a major issue (policies
to test “neutral” groups such as all AWOL soldiers ok if
consistently followed, US v Bickel, 30 M.J. 277 (C.M.A.
1990), but policies designed to test all soldiers enrolled in
ADAPC program triggers limited use immunity.

3. Subterfuge - Search under M.R.E. 315 disguised as inspection under

M.R.E. 311 (Primary Purpose of the urinalysis is the key. Are
specific persons selected, does the test follow recent report of drugs,
or are certain persons subjected to substantially different scrutiny?)

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 i. Know the codes for samples and ADAPCP referrals and look for
them
ii. Look for “smoking gun” language of counseling in Article 15s
iii. Check for policies that “target” individuals or groups. Where test
is ordered due to rumors and individual was selected as a result,
government failed to meet clear and convincing standard in
proving urinalysis was not a subterfuge US v Campell, 41 M.J. 177
(C.M.A 1994).
iv. Interview commanders early – look for “coached” commanders.
v. Check pre and post testing records for inconsistencies between
stated purposes and actual conduct of commander.
vi. Beware time span between report of drugs and individually
ordered urinalysis – probable cause may have dissipated.

4. Consent M.R.E. 314(e)

i. Must be voluntary – government must prove by clear & convincing
standard in view of totality of the circumstances. US v White, 26
M.J. 264 (C.M.A 1988).
ii. Consent is voluntary if commander explains difference between the
consent sample or fitness for duty sample. US v McClain, 31 M.J.
130 (C.M.A 1990).
iii. Indication from a person other than commander, that the
commander can authorize a urinalysis does not automatically
invalidate consent US v Radvansky, 45 M.J. 226 (CAAF 1996)
but,
iv. Commander’s indication that soldier will be tested if he / she does
not consent invalidates consent. US v White, 26 M.J. 264 (C.M.A
1988).

b. Army Limited Use Policy, Appendix F (AR 600-85 Chapter 3 and 6, Sec II)

1. Fitness for duty

i. Know the code (RC) and look for it on sample
ii. Look for “smoking gun” language of counseling in Article 15s
iii. Commander’s drug testing policies are a major issue
iv. Check pre and post testing records!!

2. Self-referral (Methods of detection and entry AR 600-85 Ch. 3)

i. Remember the standard, “A shield, not a sword” Policy designed to
promote detection and rehabilitation not to protect those attempting
to avoid disciplinary action
ii. Protected - detection resulting from self-referral, information
gained though request for emergency medical care (unless resulting
from apprehension), statements to enter ADAPC, [option to
reporting soldier] where there is a distress call on behalf of another
requiring emergency medical care AR 600-85 Ch. 6 para 5(3)
iii. What is the triggering event? Unit or law enforcement action v
client action
iv. Client character is important (is client a good soldier, credible, with
good disciplinary record?)
v. Pre and post referral conduct is an issue (does client participate in
ADAPCP after enrollment?)
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E. VOIR DIRE

Sample Voir Dire Questions

(some questions, if not entire categories of questions, may be prohibited by certain judges)

1. Find out who has sat on prior urinalysis cases and/or heard expert testimony on urinalysis tests.

2. Probe feelings on urinalysis program and testing procedures.

Does everyone agree that just because a soldier tests positive on a drug urinalysis, it does not
automatically mean that he is guilty of wrongfully using an illegal drug?

Does everyone agree that there could be any number of reasons that could cause a sample to test
positive even though the soldier did not wrongfully use illegal drugs, such as innocent ingestion,
contaminated samples, or improper lab procedures?

Have all members given urinalysis samples as part of a unit urinalysis test? Have all members
felt at least some form of anxiety that their sample may not be processed or handled properly once you
have donated the sample?

Does everyone agree that the collection procedures designated by Army Regulation on how to
properly collect, document, and test a sample should be strictly followed?

Does everyone agree that these collection procedures are designed to protect the integrity of the
system and to ensure that samples are not contaminated?

Does everyone agree that if those collection procedures are not strictly adhered to, it could
invalidate the test results?

3. Probe feelings on reliability of urinalysis lab.

Does everyone agree that even the people at the urinalysis lab can make mistakes?

Does everyone also agree that mistakes made by humans sometimes go undetected?

Does everyone agree that when humans make mistakes, sometimes they do not report or
document them for fear of reprisal?

Does anyone believe that the people who work at the urinalysis lab are above reproach, or are
more believable than other witnesses are simply because they work at the urinalysis lab.

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4. Probe feelings on Innocent Ingestion defense

The defense expects to raise the defense of innocent ingestion. We expect the military judge to
instruct on this defense as follows: (coordinate with judge for him to read the instruction or allow you to
read it). Should he give this instruction in the case, does each member agree to follow the military
judge's instruction?

Does any member have a moral or other objection to following this instruction?

The military judge will also instruct you that if this defense is raised, that the government (1) has the
burden of proof and (2) that you must be convinced beyond a reasonable doubt that this defense does not
exist. Can you all also follow that instruction?

5. Probe feelings on govt. permissible inference

The defense expects the military judge to instruct you on what we call the permissible inference.
(coordinate with judge to instruct or allow you to read as follows:) "You may infer from the presence of
BZE metabolite in the accused's urine that the accused knew he used cocaine. However, the drawing of
any inference is not required." Can everyone agree to keep an open mind on whether or not to make
such an inference?

Can everyone agree to at least consider evidence presented by the defense which could explain alternative
means of how a metabolite may be present in the accused urine, when you consider whether or not you
will make such an inference?

6. Probe feelings on rehab potential

How many panel members have given their soldiers article 15's for illegal drug use?

Have any of you ever found the soldier not guilty on an article 15 based solely on a positive urinalysis?

Have any of you developed a reputation as being a harsh punisher for people who were found guilty for
wrongful use of an illegal drug on an Art. 15?

Does everyone agree with the Army's policy to try and rehabilitate drug abusers when possible and not to
automatically discharge them from the service?

Glossary
ADAPC(P) – Alcohol and Abuse Prevention and Control (Program) – AR 600-85

ADCO – Alcohol and Drug Control Officer

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BTL – Biochemical Testing Laboratory

FTDTL – Forensic Toxicology Drug Testing Laboratory

IBCP - Installation Biochemical Collection Point

IBTC - Installation Biochemical Testing Coordinator

UADC – Unit Alcohol Drug Coordinator

UUI – Unit Urinalysis Inspection

UUL – Unit Urinalysis Ledger (Form 0429-R)

2624- DD Form 2624 Specimen Custody Document

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