I’ve been in the Marine Corps for over 20 years (Active and Reserve), as a pilot and lawyer – both as a prosecutor and a defense attorney. I’ve been a part of (easily) hundreds of cases involving positive urinalysis results, and I’ve taken several dozen tests myself (maybe more, but you get the picture). In my role as counsel for CrossFit, Inc., I’ve written and supervised the drug-testing policy for the CrossFit Games. Now, whenever we hear “so-and-so popped positive” on a drug test we all automatically think, “Guilll-teeee.” And that’s probably true about 99% of the time – but 1%, it’s not. And that 1% (or .5% or whatever the number is) of the time is the only percentage that really matters.
The military courts have really struggled with this issue because the stakes there are even higher than for Ryan Braun. Millions of dollars, you say? How about a felony and jail time, along with a potential bad conduct discharge and lifetime of benefits lost? That’s a very real possibility for a conviction of violating Article 112a of the UCMJ. Smoke weed in the military, particularly the Marines, and the stakes are really, really high (no pun intended).
The assumptions behind our thoughts that he’s “guilty” of using drugs if he popped positive is based on two generally reasonable premises that we don’t often consider out loud: (1) most of us know what we put into our bodies and have a hard time imagining someone not knowing (the ‘innocent ingestion’ defense), and (2) the science behind the testing process is completely valid. Here’s the problem – I’ve seen both of these go bad and the second is the less tenable of the two.
First, in all of my years, I’ve seen about 3 or 4 legitimate ‘innocent ingestion’ defenses where I believed – completely – that the guy was innocent and either a vindictive girlfriend (seen that one once), or a careless paramour (seen that 2 or 3 times) laced some food or drink and the schlub who drank/ate it had no idea what he was ingesting. In one case, the guy knew something was up as he started hallucinating, but he thought he was merely drunk rather quickly. He told a friend contemporaneously (as he was getting loaded) and that is what saved him from conviction. I wasn’t part of the case, but had heard about it and sat in on the trial. The jury acquitted and my view of the testimony was that was the right decision – the guy was innocent. I was a prosecutor at the time (and no, I had nothing to do with the case going forward). So, we should at least realize that given the number of people who recreationally use weed or other drugs, it might pay to be a little circumspect about eating the leftovers out of someone else’s fridge after you crash on the couch from that big party.
A second point on drug testing: ever since Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), and National Treasury Employees Union v. Von Raab, 489 U. S. 656 (1989) – two Supreme Court decisions that upheld random drug-testing without any particularized suspicion – drug testing of employees by employers has become rampant in the United States. It continues to be extended for DOJ employees, municipalities, and on and on. The “War on Drugs” is no longer about the Mexican border or Colombian cartels, it’s about whether or not you can be employed, or if you want to use weed in your spare time, or borrow someone else’s prescription for a tweaked back, or forget to tell the person running the drug-test that you’ve had a cold and been taking some ephedrine-based product.
Let’s look at the other kind of “innocent ingestion.”
I would agree and concede that the odds of a pure “innocent ingestion” happening are small, but there are other forms of innocent ingestion, and they are related to the science of drug testing. First, this article is worth reading (click here) – for those who hate hyperlinks, I’ll sum up – the Journal of Family Practice points out that there are a number of over the counter substances that contain opiates, as well as other products that are metabolized in the body so that the byproduct in the urine can be the metabolites for illicit drugs (for example, oxaprozin – DayPro™- produced a 100% false-positive rate for benzodiazepine). The same is true of energy drinks like “Jack3d” and particularly for supplements that are produced/manufactured overseas: steroids and other banned substances in the US are not necessarily illicit in other countries – or they don’t have an FDA and don’t really care about what they put in there or how it’s produced. A quick perusal of message boards or some anonymous postings shows a stunning number of people who are “devastated” after testing positive for something or other that they are certain they’ve never taken – some of the stories are heartwrenching – many cautionary:
“As a hiring manager, I just tested a 63 year old male, who failed a five panel drug test for meth. Interestingly enough, he and I are on the same drug regime for Type 2. It took three hours for the test to register as a negative. [I] Tried the same drug test. Yep! I failed as well. Mine took 15 minutes to show negative. So if you fail, ask them for a repeat and a three-hour time frame for it to show — or get a good attorney.
Note: It seems to happen in a greater proportion of hypoglycemics, so get a C-Pat test and check out your insulin levels.”
None of this has even begun to address the collection procedures, or the testing procedures. These are just the instances where we assume that the urine is collected properly, the bottles are clean, the samples are boxed up properly and shipped without incident, there is no possible cross-contamination, the labels are properly matched, and THEN that there is no problem in how the lab handles everything with the sample. Part 2 explains how this is supposed to work…. in theory.