DRUG ABUSE DETECTION

Not in My Navy and Zero Tolerance are the Navy's call to arms in the war on drugs. These statements reflect our commitment to the elimination of illicit drugs and drug abusers from the Naval Establishment and the continued emphasis placed on deterrence, leadership, and expeditious action. While the options available to commanders in combating drug abuse are many and varied, this section deals only with the urinalysis program and its limitations.

GENERAL GUIDANCE

The urinalysis program of the Navy was established to provide a means for the detection of drug abuse and to serve as a deterrent against drug abuse. OPNAVINST 5350.4B contains guidelines on alcohol and drug abuse prevention and control. Additional guidance is found in the Military Rules of Evidence. These rules and directives contain detailed guidelines for the collection, analysis, and use of urine samples.

The positive results of a urinalysis test may be used for a number of distinct purposes, depending on how the original sample was obtained. Therefore, it is important to be able to recognize when, and under what circumstances, a command may conduct a proper urinalysis.

TYPES OF TESTS

OPNAVINST 5350.4B directs that commanders, COs, and OICs should conduct an aggressive urinalysis testing program, adapted as necessary to meet unique unit and local situations. The specific types of urinalysis testing and authority to conduct them are outlined as follows.

Search and Seizure

Tests conducted with member's consent. Members suspected of having unlawfully used drugs may be requested to consent to urinalysis testing. For consent to be valid, it must be freely and voluntarily given. In this regard, OPNAVINST 5350.4B provides that, before requesting consent, commands should advise the member that he or she is suspected of drug use and may decline to provide a sample. A recommended urinalysis consent form is shown in figure 4-3.

Probable cause and authorization. Urinalysis testing may be ordered, according to Mil.R.Evid 312(d) and 315, whenever there is probable cause to believe that a member has wrongfully used drugs and that a test

will produce evidence of such use. For example, during a routine locker inspection in the enlisted barracks, you find an open baggie of what appears to be marijuana under some clothes in Petty Officer Doe's wall locker. Along with the marijuana you find a roach clip and some rolling papers. You notify the CO of your find and he sends for Doe. A few minutes later, Petty Officer Doe staggers into the CO's office-eyes red and speech slurred. He is immediately apprehended and searched. A marijuana cigarette is found in his shirt pocket. Under these facts, a commander would have little trouble finding probable cause to order that a urine sample be given.

Probable cause and exigency. Mil.R.Evid 315 recognizes that there may not always be sufficient time or means available to communicate with a person empowered to authorize a search before the evidence is lost or destroyed. While more commonly seen in the operable vehicle setting, facts could give rise to support an exigency search of a member's body fluids.

Figure 4-3.-Urinalysis consent form.

Remember, to be lawful, an exigency search must still be based upon a finding of probable cause. Because drugs tend to remain in the system in measurable quantities for some time, it is unlikely that this theory will be the basis of many urinalysis tests.

Inspections Under Mil.R.Evid. 313

Commanders may order urinalysis inspections just as they may order any other inspection to determine and make sure of the security, military fitness, and good order and discipline of the command. Urinalysis inspections may be ordered for the primary purpose of obtaining evidence for trial by court-martial or for other disciplinary purposes. This would defeat the purpose of an inspection and make it a search. Commands may use a number of methods of selecting service members or groups of members for urinalysis inspection, including, but not limited to the following: . Random selection of individual service members from the entire unit or from an identifiable segment or _{class of that unit.} Random selection is achieved by making sure each service memher has an equal chance of being selected each time personnel are chosen. l Selection, random or otherwise, of an entire subunit or identifiable segment of a command. Examples of such groups include an entire department, division, or watch section; all personnel within specific paygrades; all newly reporting personnel; or all personnel returning from leave, liberty, or unauthorized absence (UA).

l Urinalysis testing of an entire unit. As a means of quota control, Navy commands are required to obtain second-echelon approval before conducting all unit sweeps and random inspections involving more than 20 percent of a unit, or 200 members. Failure to obtain such approval, however, will not invalidate the results of the testing.

Service-Directed Testing

Service-directed testing is actually nothing more than inspections of units expressly designated by the Chief of Naval Operations (CNO). These include rehabilitation facility staff; security personnel; A school candidates; officers and enlisted in the accession pipeline; and those executing permanent change of station (PCS) orders to an overseas duty station.

Valid Medical Purposes

Blood tests or urinalyses also may be performed to assist in the rendering of medical treatment (for example, emergency care, periodic physical examinations, and such other medical examinations as are necessary for diagnostic or treatment purposes). Do not confuse this with a fitness-for-duty examination ordered by a service member's command.

Fitness-for-Duty Testing

Categories of fitness-for-duty urinalysis testing are briefly described as follows. Generally, all urinalyses not the product of a lawful search and seizure, inspection, or valid medical purpose fall within fitness-for-duty/comand-directed categories.

Command-directed testing. A command-directed test will be ordered by a member's CO or OIC, or other authorized individual whenever a member's behavior, conduct, or involvement in an accident or other incident gives rise to a reasonable suspicion drug abuse and a urinalysis has not been conducted on a probable cause or consensual basis. Command-directed tests are often ordered when suspicious or bizarre behavior does not amount to probable cause.

Aftercare and surveillance testing. Aftercare testing is periodic command-directed testing of identified drug abusers as part of a plan for continuing recovery following a rehabilitation program. Surveillance testing is periodic command-directed testing of identified drug abusers who do not participate in a rehabilitation program as a means of monitoring for further drug abuse.

^{Evaluation testing.} This refers to commanddirected testing when a commander has doubt as to the member's wrongful use of drugs following a laboratory-confirmed urinalysis result. Evaluation testing should be conducted twice a week for a maximum of 8 weeks and is often referred to as a two-by-eight evaluation.

Safety investigation testing. A CO or any investigating officer may order urinalysis testing in connection with any formally convened mishap or safety investigation.

USES OF URINALYSIS RESULTS

Of' particular impportance to the command is what use may be made of a positive urinalysis. The results of a lawful search and seizure, inspection, or a valid medical purpose may be used to refer a member to a Department of Defense (DOD) treatment and rehabilitation program, to take appropriate disciplinary action, and to establish the basis for a separation and characterization in a separation proceeding.

The results of a command-directed/fitness-for-duty urinalysis may not be used against the member for any disciplinary purposes, not on the issue of characterization of service in separation proceedings, except when used for impeachment or rebuttal in any proceeding that evidence of drug abuse has been first introduced by the member. In addition, positive results obtained from a command-directed fitness-for-duty urinalysis may not be used as a basis for vacation of the suspension of execution of punishment imposed under Article 15, UCMJ, or a result of court-martial. Such result may, however, serve as the basis for referral of a member to a DOD treatment and rehabilitation program and as a basis for administrative separation.

What administrative or disciplinary action can be taken against service members identified as drug abusers through service-directed urinalysis testing varies, depending upon which CNO-designated unit was tested. The only constant is that all service-directed testing may be considered as the basis for administrative separation.