It has long been speculated that ingestion of legally purchased foods containing poppy seeds could result in a positive urinalysis for morphine or codeine. In 2023, the Department of Defense finally confirmed these suspicions and suspended reporting of codeine results on all urinalyses processed by the DoD.
MJA understands the significant adverse consequences that service members can face due to a positive urinalysis and that innocent ingestions do occur. MJA has fought and won drug abuse cases for service members throughout the world. Contact one of our military defense lawyers today to learn more.
ARTICLE 112a, UCMJ (DRUG ABUSE)
Article 112a, UCMJ, criminalizes the wrongful use, possession, manufacture, distribution, importation into and exportation from the United States, and introduction into a military installation, vessel, vehicle, or aircraft under the control of the armed forces.
To be guilty of violating Article 112a for drug use, the Government must prove two elements:
- That the service member used a controlled substance; and
- The service member’s use was wrongful.
The second element is particularly important. Service members who unknowingly or innocently ingest a controlled substance do not have the mens rea (i.e. criminal intent) to violate the law and are therefore not guilty of “wrongful” drug abuse. This would certainly be the case for service members who innocently ingest a legally purchased food product containing poppy seeds.
POPPY SEED PRODUCTS CAN CAUSE A POSITIVE URINALYSIS
In February 2023, the DoD’s Office of Drug Demand Reduction (ODDR) determined that ingestion of certain legally purchased foods could result in a positive urinalysis for codeine.
While poppy seeds themselves do not produce opiates, the poppy seeds can be contaminated during harvest with morphine and codeine. This is particularly troublesome given that certain varieties of poppy seeds are now believed to have concentrations of codeine than previously reported.
DoD drug testing traditionally excluded poppy seed consumption as a legitimate explanation for a positive urinalysis if the service member’s sample contained concentration of both codeine and morphine together. However, a recent scientific study suggests that ingestion of certain types of poppy seeds can result in a positive urinalysis for codeine only—a result that the DoD previously would have considered wrongful drug use and not the result of an innocent ingestion.
In light of these findings, the ODDR temporarily suspended reporting of codeine results on all urinalyses processed at Department of Defense Forensic Toxicology Drug Testing Laboratories and suspended the destruction of urine specimens previously reported as a codeine positive. The DoD also released a memo warning service members to avoid consuming poppy seed products.
PREVIOUSLY DISCHARGED SERVICE MEMBERS
Service members with a previously reported positive urinalysis for codeine, consistent with poppy seed ingestion, are supposed to be identified and contacted by their respective military branch. According to recent guidance, the services have been directed to take “appropriate remedial actions” in those cases—whatever that means.
Service members who do not want to wait around, however, can always petition their Discharge Review Board or Board for Correction of Military/Naval Records for a discharge upgrade or other potential relief.
WINNING YOUR CASE
It is a misconception that service members cannot fight or challenge a positive urinalysis, which is largely perpetuated by commands who try to convince the service member that they have no hope of winning at a court-martial. This is simply not true. At MJA, we have used many different defenses to convince a jury (memberS panel) that there was reasonable doubt as to the unlawfulness of the drug use, such as good military character, unknowing ingestion, timeline, lack of motive, testing limitations, and urine collection procedures.
Furthermore, many of these defenses can be used in conjunction with each other to make the defense theory of the case that much more compelling to the jury. At MJA, we have fought and won many drug abuse cases for our clients throughout the world. Examples of successful cases include:
- A Lance Corporal (E-3) in the Marine Corps was accused of violating Article 112a of the UCMJ. MJA helped the young Marine refuse NJP and then fight the charges at his administrative hearing where we successfully showed his vaping activity did not violate Article 112a. The administrative hearing concluded there was no misconduct on the part of the LCpl and returned him to full duty status.
- A Hospital Corpsman Second Class (E-5) in the Navy was notified of nonjudicial punishment for allegedly violating Article 112a after testing positive for amphetamines. The Corpsman refused NJP and demanded trial by court-martial, explaining to his command that he had a lawful prescription for Adderall. MJA represented the Corpsman at the board hearing and proved that the Sailor did not wrongfully use a controlled substance. The board voted unanimously to find NO BASIS for the alleged drug abuse. The Corpsman was retained on active duty and is excited to continue his military career.
- A Petty Officer First Class (E-6) in the Coast Guard was charged with allegations of alcohol and drug abuse under Article 112a of the UCMJ which led to an administrative hearing. MJA worked closely with the Petty Officer to make sure he was getting the proper treatment and help with underlying medical issues while also preparing for his administrative hearing. Through MJA’s efforts, the board found in favor of the service member regarding the alcohol abuse, found no misconduct regarding the 112a, and recommended retention in the Coast Guard.
- A Corporal (E-4) in the Marine Corps was accused of multiple violations of the UCMJ to include possession of narcotics and steroids in violation of Articles 112a and 92, UCMJ. MJA worked with the Corporal to gather witness statements to show he never used drugs or possessed illegal drugs with the intent to use them. As a result of MJA’s efforts, the Corporal was found not guilty of the allegations at NJP and was allowed to finish his enlistment.
- A Petty Officer Third Class (E-4) in the Navy tested positive for THC following a random urinalysis. The Sailor was notified of NJP where, if convicted, he faced the possibility of reduction in rank, restriction, and administrative separation from the Navy. MJA provided evidence to the command showing that the Sailor had innocently ingested THC infused candy. Based on this evidence, the Commanding Officer found the Sailor not guilty at NJP and did not initiate administrative separation processing.
BEYOND A REASONABLE DOUBT
Although every drug abuse case is different, it is important to know that it is never easy for the prosecution to prove beyond a reasonable doubt that the suspect service member intentionally or knowingly ingested the controlled substance. For instance, in a former Marine Corps case, our client had popped for amphetamines, a Class II Controlled Substance, on a urinalysis. He had never been in trouble with law enforcement or his command; was sick in his quarters for four days leading up to him providing his urine; and, the prosecutions had no theory as to how, when, or where the amphetamine was consumed, or put on any evidence as to whether the service member knowingly ingested the drug. We were not surprised that the jury came back in less than 60 minutes with a not guilty verdict.
Although the military has a zero tolerance policy with drug abuse allegations, the service member should not give up hope, and fall on their sword. At MJA, we give daily consultations to service members who are suspected of unlawful drug use, and a common refrain we hear from these service members is that they have been told there is no hope so accept accountability and maybe the punishment will be less. If you are suspected of drug abuse based off of a positive urinalysis you should always ask yourself whether you can plead guilty to something you know you did not do. If you are not comfortable pleading guilty, then you need to retain the best military drug abuse defense lawyer you can to fight shoulder-to-shoulder with you throughout the process.
PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER
When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, including drug offenses. Call us today at (843) 773-5501 for a free consultation.
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